Alimony Reform Act Part 2 - Types of Alimony

In Massachusetts, a judge can order alimony in a divorce or not. An award of alimony will last until there is a change of circumstances. The only way alimony can terminate based on a period of time is if the parties agree. Without such an agreement, alimony lasts until a party dies, the recipient remarries, or a change of circumstances exists.
The proposed Alimony Reform Act will allow different types of alimony. The bill will allow General Term Alimony, Rehabilitative Alimony, Reimbursement Alimony, and Transitional Alimony.
General Term Alimony is the equivalent of alimony under current law. However, under the new law, the court will limit alimony to a period of time unless the court makes findings that alimony should exceed the time limits. The time limits start at 50% of the length of the marriage for marriages under five years and can be indefinite for marriages over 20 years.
Rehabilitative Alimony provides support while a spouse acquires skills to become self-supporting. This will allow support while a spouse gets an education or job training.
Reimbursement Alimony is not based on need but provides compensation for support or other contribution to the family. It is not unusual for one spouse to sacrifice their education and work while the other spouse gets an education.
Transitional Alimony provides support while a spouse "transitions" to a new location or an adjusted lifestyle. Usually, this would be a one time payment. Under current law, a court can order payments of this nature but it would be part of a property division order and not alimony. Allowing payments of this nature as alimony will give Judges more flexibility in making judgments.
The proposed law, with different types of alimony, will provide more flexibility and more fairness in divorce decrees.

Alimony Reform Act of 2011 Part 1

In 2011 the Massachusetts legislature passed a law that changed  alimony  in  Massachusetts. The law is called the Alimony Reform Act of 2011.  I will discuss the proposed changes in this blog. I will post a number of articles as there are too many changes to discuss in one posting. The first topic will be the factors a court will consider when deciding an alimony issue.
Alimony is sometimes awarded when couples get divorced in Massachusetts.  It is controlled by G.L. c. 208, § 34.  The new bill, if passed, will be a complete overhaul of the law of alimony in the state.
I have created a chart which compares the alimony factors under present law and the proposed law which is included at the end of this article. The new law includes all of the factors that a judge must consider and may consider under current law and adds additional factors. However, the biggest change is a catch all concept that allows the judge to consider any additional factors as the court may deem relevant and material. There have been many decisions where judges have lamented the current limitations that restrict the factors to the those stated in G.L. c. 208, § 34. Under the new law, the Judges won’t have this limitation. This should result in fairer and more equitable results.
While the current factors are preserved, there is additional language that places an emphasis on certain behavior. Abuse that causes physical or mental harm that interferes with a party’s ability to earn income is specifically mentioned in the new law. It appears that health issues that effect one’s ability to earn money are emphasized in the new law as additional language is added to the health factor.
Under current law, alimony may be ordered by a Judge or not ordered. A Judge has no ability to limit an alimony award to a period of time. The proposed law will allow a Judge to impose time limitations. Thus a new factor will be considered: the appropriate period of time for alimony. This new concept in Massachusetts should create more just and fair alimony awards in divorces.

　

Current Law G.L. c. 208, § 34.	Proposed Law Alimony Reform Act of 2011
length of the marriage	length of the marriage
conduct of the parties during the marriage	conduct of the parties during the marriage including a party’s inability to provide for his or her own support by reason of physical or mental abuse by the payor
age	age
health	health including advanced age; chronic illness; or unusual health circumstances of either party
station	station and marital lifestyle
	ability of each party to maintain the marital lifestyle
occupation	occupation and if a party is unemployed or underemployed
amount and sources of income and employability	both parties’ income, employment and employability, including employability through reasonable diligence and additional training
vocational skills	vocational skills
estate	estate
liabilities	liabilities
needs of the each of the parties	needs of the each of the parties
opportunity of each for future acquisition of capital assets and income	opportunity of each for future acquisition of capital assets and income

	amount and duration of alimony
	ability to pay alimony
	economic or noneconomic contribution to the financial resources of the payor spouse and to the marriage
	Significant premarital cohabitation that included economic partnership and/or marital separation of significant duration
	lost economic opportunity as a result of the marriage and a party’s inability to provide for his or her own support by reason of a party’s deficiency’s of property, maintenance or employment opportunity
	such other factors as the court may deem relevant and material
	Tax considerations applicable to the parties
	Whether the payor spouse is providing health insurance and the cost of heath insurance for the recipient spouse
	Whether the payor spouse has been ordered to secure life insurance for the benefit of the recipient spouse and the cost of such insurance
	Sources and amounts of unearned income, including capital gains, interest and dividends, annuity and investment income from assets that were not allocated in the parties divorce

　
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Landlords must strictly comply with security deposit law

The Massachusetts security deposit law imposes severe obligations on landlords. Tenants have argued a strict interpretation of the law and landlords have argued for good faith compliance. In the case of Lopes v. Williams, 2010 Mass. App. Div. 227 (2010) the court sided with tenants in this argument. In this case, the landlord failed to place the security deposit in an escrow account. This failure required the landlord to return the security deposit to the tenant within thirty days of receiving the security deposit. An argument advanced in the past was that the tenant had to request the return of the security deposit. This case makes it clear. The landlord either holds the money properly in an escrow account or must return the security deposit to the tenant in thirty days even if the tenant does not request a return of the money. Failure to do so will cause the landlord to pay three months rent and attorney fees to the tenant. This case also dismissed the good faith argument. It is clear that landlord’s intentions or understanding of the law is not relevant to the landlord’s obligations and liabilities. The landlord must strictly follow the requirements of the security deposit law.

I think that this law is so difficult for landlords that unless they are professional landlords, they shouldn’t take a security deposit. They shouldn’t run the risk of paying three months rent and attorney fees.

Is the Ibanez decision a landmark case?

The Massachusetts Supreme Judicial Court recently issued a decision in the case of U.S. BANK NATIONAL ASSO. v. IBANEZ, (Mass. 172011) (Jan 7, 2011) in which the court held that two foreclosures in Massachusetts were void. Some commentators have treated this decision as a landmark decision in real estate that will shake up the mortgage industry. I think that this case is a reaffirmation of traditional concepts in real estate law. It may help some homeowners understand their rights, Some people who have lost their homes to foreclosure may even get their homes back. It should cause mortgage companies to be more careful in their attention to the paperwork and detail of mortgages and foreclosure.
Massachusetts law of mortgages and foreclosure was created in a day before computers when banks treated mortgages one at a time. Usually, banks loaned money and held the mortgage until it was paid off. Today, banks loan money for mortgages and sell them to other investors before the ink dries on the promissory note. Mortgages are bundled together and sold to investors in large groupings of mortgages. Paperwork has changed from selling a single transaction to selling thousands of loans at a time by transferring them to a trust or other entity. This process, called securitization, may have to change in light of the Ibanez decision.
In Ibanez, two properties were foreclosed upon and then the banks that bought the properties brought actions in land court to declare that they held good title to the properties. To the suprise of the banks, the court held that they did not have good title. The foreclosures were void.
Massachusetts has always held that any legal action that causes a forfeiture must strictly comply with the procedures required. Failure to comply with the formalities will result in failure to cause the forfeiture. This applies to foreclosures, evictions, or any other action that the law considers a forfeiture. The Ibanez decision was based on this concept that the mortgage companies failed to strictly comply with the formalities of foreclosures.
In Ibanez, the mortgages were sold many times before the foreclosure. The documentation of the transfers or assignments was not properly filled out until after the foreclosure process was started. Since a foreclosure can only be conducted by the party who holds the mortgage, the failure to properly assign the mortgage makes any subsequent foreclosure void. This doesn’t mean that assignments must be recorded at the registry to be valid. It does mean that the banking industry must take care to check the paperwork before foreclosing.
What does this case mean for future foreclosures? Actually, it makes very little difference. Banks and bank attorneys will have to do more work to prepare for foreclosures. If the paperwork isn’t correct, they need to correct it before a foreclosure is conducted. This may slow down the process a little. It should not be a significant difference. Homeowners may consult hire attorneys about stopping or reversing foreclosures. Since most people face foreclosure because they can’t make the payments, this won’t change the result. This case doesn’t put money in the pockets of homeowners. It merely forces banks to pay more attention to detail. A homeowner can hire a lawyer to fight a foreclosure but if the homeowner can’t find the money to bring the mortgage current, foreclosure will still occur. Eventually, the bank will own the property.
The Ibanez case is important but it is not earth shattering. Massachusetts law didn’t change. Instead, mortgage companies will change their practices a little.

What does it take for a party to get 90% of the assets in a divorce?

Property division in a divorce is controlled by G.L. c. 208, §34 which lists the factors for a judge to consider when making a decision about property division. Usually, the judge makes a division somewhere between a 50-50 split and a 60-40 split. Sometimes, the judge may make a more lopsided division of 65-35 or even 70-30. It is almost unheard of for a judge to divide the assets by an 80-20 split. In the recent case of Wolcott v. Wolcott, 78 Mass.App.Ct. 539 (2011), the court did the unthinkable and awarded the husband 90% of the assets. This lopsided division was based on highly unusual circumstances.
In this case, the wife tried to hire someone to kill the husband and may even have tried to kill him herself. She was convicted of attempting to hire a hitman and served three months in jail. The appeals court found that "conviction of a spouse of the crime of soliciting the murder of the other spouse" was "exceptional" conduct that shocked the conscience of the court and would "have an impact on the ‘conduct’ factor under [§ 34] irrespective of ‘economic impact.’" However, the attempt to murder the spouse alone, would not have justified such a lopsided result. In addition to the wrongful conduct, the court looked at the economic effect from the wrongful conduct. The court found that the wife’s conduct forced the husband to "take on total responsibility for the children’s care"; "makes [the husband] totally responsible for maintaining the parties’ home"; and will "always" adversely affect the husband as it "diminishes his ability to be totally focused on life and work issues." The wrongful conduct and the economic consequences justified an award to the husband of 90% of the marital assets.
The lesson learned from this case is that it is cheaper to divorce a spouse than to try to kill the spouse. As always, compliance with the law is better than violation of the law.

How does the father protect his parental rights when he is not married to the mother?

Men are suppose to have equal rights with women in Massachusetts. However, a recent case explains that when it comes to children from parents who are not married to each other, men don’t have equal rights unless they take certain steps to protect those rights. Ideally, men and women have equal rights under the law. However, science does not afford the same level of equality. When a child is born, there is no question of the identity of the mother of the child. Therefore, the law recognizes the mother and her parental rights immediately upon birth. Biology does not make identification of the father so easy. A man may be present at birth, have his name on his birth certificate, and support the child. However, these actions are not sufficient to instill the man with parental rights. An alleged father of a nonmarital child may become a legal parent in one of two ways only: through an adjudication by a judge, or by filing a voluntary acknowledgment of paternity executed by both parents. The man’s name on the birth certificate is not sufficient.
The recent case of SMITH v. McDONALD, SJC-10670 (Mass. 12-14-2010) explained that prior to a legal determination of paternity, the child's mother is vested with sole physical and legal custody, and that custody arrangement continues even after paternity is established until modified by a court. So if no court action has been filed, the mother has sole custody of the child even if the parties have executed a voluntary acknowledgement of paternity.
A man who wants to protect his parental rights must have a judge determine that he is the father and grant him joint legal or joint legal and physical custody. Even if the parties are living together, when a child is born of a non marital relationship, the parties should execute a voluntary acknowledgment of paternity and go to Probate Court and have the court grant joint custody to the father and mother. This will protect the child’s rights as well as the father’s rights.

Massachusetts has a new homestead law.

Massachusetts has changed the homestead law effective in March 2011. These changes will benefit every person in Massachusetts that owns a home. A homestead is a statutory exemption protecting a principal residence against the rights of creditors. This means that a homeowner who owes money for a debt has some protection against losing his home to the creditor. The new homestead law provides an automatic homestead in the amount of $125,000.00 and three other types of optional homesteads that provide protection of $500,000.00. I recommend that every homeowner should take advantage of the homestead law and file a declaration of homestead to take advantage of the full $500,000.00 protection.
A homestead does not prevent a creditor from attaching a home. As an example of the way this law works, take the example of Homeowner A who causes an auto accident and gets sued for $1,000.000.00. The damages sought exceed the amount of A’s auto insurance so the victim of the accident obtains an attachment of A’s home. If there was no homestead, the victim could force a sale of A’s home to get the equity in the house. However, with the homestead, the victim could still force a sale of the house but the first $500,000.00 in equity ($125,000.00 if it’s the automatic homestead only) goes to A and not the victim. This means that the victim won’t force a sale of the house unless A has more than $500,000.00 in equity.
There are many improvements in the new law that will benefit homeowners. The new law extends the homestead protection to spouses and other family members. The law also protects against prior debts that are not yet secured by the house. Of course, it doesn’t protect against voluntary liens on the real estate such as mortgages.
I recommend that every person in Massachusetts who lives in a house that they own declare a homestead.

Bullying in a divorce

There has been much discussion in Massachusetts lately about bullying in schools. However, bullying is not limited to that arena. Bullying occurs everywhere in society including marriages and divorce. However, in a divorce, bullying can be particularly harmful. Bullying can effect the outcome of a divorce and this can have ramifications for the rest of a person's life. In fact, frequently, bullying is conducted for the sole purpose of effecting the outcome of the divorce.

It is not unusual for one party in a marriage to be overbearing to their spouse. When the parties get divorced, it is typical for the overbearing conduct to get worse. This conduct can vary from merely being rude to being highly destructive to spouse and children. Bullying should be recognized as a form of abuse. It is a course of conduct that is designed to control the spouse and should never be tolerated in a divorce.

Unless this conduct is addressed, you can expect that it will continue and get worse. If there are children, it is possible that this conduct will last for the joint lives of the parties. While they may be getting divorced, they will still have to deal with each other because of the children.

How do you deal with bullying? The first step is to recognize conduct as bullying. Then take the person to an authority that can punish the conduct.

Bullying involves repeated acts attempting to create or enforce a person's power over another and creating an imbalance of power. Bullying consists of three basic types of abuse – emotional, verbal and physical. Wikipedia. Massachusetts defines bullying in schools as: "the repeated use by one or more students of a written, verbal or electronic expression or a physical act or gesture or any combination thereof, directed at a victim that: (i) causes physical or emotional harm to the victim or damage to the victim's property; (ii) places the victim in reasonable fear of harm to himself or of damage to his property; (iii) creates a hostile environment at school for the victim; (iv) infringes on the rights of the victim at school; or (v) materially and substantially disrupts the education process or the orderly operation of a school. For the purposes of this section, bullying shall include cyber-bullying." G.L.c. 71, § 37O. These definitions apply to divorces as well.

Bullying needs to be brought to the attention of the court. Only the court can punish this conduct. If the behavior involves physical conduct or a threat of physical abuse, then a domestic abuse restraining order can be obtained under G.L. c. 209A. Other conduct can be addressed by the court’s powers in a divorce or paternity action. It is not unusual for orders of the court to address this behavior without knowing that bullying is occurring. Usual orders include language that no conduct can occur that denigrates a party and that the parties have to treat each other with respect.

If bullying occurs, get an order to prevent the specific conduct and then bring a contempt to address the wrongful behavior if it continues.  Abuse should never be tolerated.

Perhaps the best way to deal with bullying in a divorce is to hire an experienced family law attorney.   This attorney should act as a barrier between the bully and the victim.  I find a very effective course of conduct is to direct the anger of the abuser to the attorney instead of the spouse.   When the bully blames the lawyer, they usually back off from abusing the spouse.

Recognition of international custody decisions

In the recent case of CHARARA v. YATIM, 09-P-1189 (Mass.App.Ct. 11-23-2010) the Court refused to recognize a custody determination from a Lebanese Court. A little background helps understand this case.
Prior to the enactment of the Parental Kidnapping Prevention Act in the late 1970's, custody disputes frequently resulted in battles across state lines. Since child custody judgments are considered subject to change based on a change of circumstances, states traditionally considered child custody cases even if another state had rendered a decision. This resulted in parties grabbing the children, running across state lines, and filing a new action. This was unique in American law as the Constitution requires states to give full faith and credit to final judgments of other states. A custody decision which appeared to be a final statement was not treated that way. Congress passed the Parental Kidnapping Prevention Act and required all states to treat custody decisions of other states as final judgments. The law also created a concept of home state to prevent parties from transporting children across state lines to find a favorable court. The concept of home state requires that child custody disputes be litigated in the state where a child has resided for the six months prior to the filing of the action.
Following the enactment of the Federal Parental Kidnapping Prevention Act, a uniform set of laws was proposed which was known as the Uniform Child Custody Jurisdiction Act. This incorporated the PKPA’s concepts of home state and recognition of other state judgments. Gradually, all states adopted a version of the UCCJA. Massachusetts was among the last states to adopt this. It can be found in the Massachusetts General Laws as chapter 209B. Included in the MCCJA is G.L.c. 209B, § 14 which reads: "To the extent that the legal institutions of other nations have rendered custody determinations in substantial conformity with the provisions of this chapter, the courts of the commonwealth shall grant due recognition to such determinations"
This provision should discourage transporting children from another country to Massachusetts to gain an advantage in a custody dispute. However, as we can tell from this current case, not all international decisions will be recognized by Massachusetts courts.
In Charara v. Yatim, the husband and wife were living in Massachusetts with two minor children. They had both been born in Lebanon and were Shia Muslims but had become US citizens. The children were also US Citizens and had been residing in Massachusetts for more than six months prior to the first filing in Lebanon. In 2004 the couple went to Lebanon to obtain a religious divorce. Approximately one month later, the husband filed a guardianship action in Lebanon. Eventually, a Lebanese Court issued a judgment granting custody to the husband. Consistent with Lebanese law, the decision was issued by a religious court. The wife participated in the Lebanese proceeding. After the Lebanese case concluded, the wife returned to Massachusetts and filed an action to obtain custody of the children.
The Massachusetts court focused on two points in making a decision: 1) home state of the children and 2) substantial conformity with Massachusetts law. As the children had been in Lebanon for only one month prior to the filing of the guardianship action, the Lebanese decision was not entitled to recognition in Massachusetts. In addition, Lebanese child custody law differs from Massachusetts. Under the Shiite religious law, a father who is a fit parent will have custody of male children. Fitness of the mother is not relevant to the court’s determination. Massachusetts law is based on the "best interests of the children." This standard requires a judge to consider the fitness of both parents and does not give an advantage to one gender. There are many factors a Massachusetts judge considers including which parent has acted as the homemaker prior to the breakup of the family. Lebanese law is more limited and does not allow for equal consideration to both mother and father.
The failure of the Lebanese Court to consider both parents equally and to consider the role as homemaker was found by the Massachusetts Court to not be in substantial conformity with Massachusetts law. As a result, the Massachusetts Court refused to recognize the Lebanese decision and made its own determination.
It should have been sufficient that the Lebanese litigation was commenced when the children had been in Lebanon for only one month. However, the Court went on to decide the case on the grounds that the foreign decision was not in substantial conformity with Massachusetts law.
Massachusetts law currently mandates that the court focus on the children and not the parents. This is what the court did in this case. This case should be viewed as a victory for children’s rights.

When should a parent coordinator be used?

A parent coordinator is a neutral third person who is appointed by the court to resolve custody disputes between parents who no longer live together or are divorced. Resolving disputes by a parent coordinator is less expensive than court proceedings and much faster. Either party can "appeal" the decision of the coordinator to a Judge.
A parent coordinator is appointed by a Judge and the order will spell out the specific powers of the PC.  The cost of the parent coordinator is usually split between the parties and the PC process is usually conducted without involvement of attorneys.
A parent coordinator works best when both parties act in good faith. By the time a family becomes involved with a PC, the two parents have developed a history of not working together. In the worst cases, they are frequent users of probate court as they return to have the judge decide minor matters. Often, they tend to oppose each other in parenting decisions and have difficulty compromising. While they both may seek the best interests of the child, they are not interested in reaching an agreement with each other. In many cases, neither parent’s position is harmful to the child. However, the parents simply won’t agree with each other. In cases like this, the decision of the PC is not nearly as important as the fact that a decision is being made.
Each person who acts as a parent coordinator uses different procedures. A typical method is for the PC to meet the parties to get to know them. After that, contact is usually through email or telephone calls. Sometimes, the PC will request a meeting with the two parents to resolve matters. Frequently each parent will email their decision to the PC and the PC will email a decision back. This keeps the cost to a minimum.

At what age can a child decide which parent to live with?

I am frequently asked by clients about when a child gets to decide which parent they will live with. Often, parents inform me that they know that the child gets to decide at a particular age. However, there is no simple answer.  There are many factors the court must consider when deciding child custody or visitation.
A judge will decide custody and visitation for a child based upon the standard of the best interests of the child. A child’s preference for custody is one factor that may be considered by the court. When the child is young, the court seldom pays attention to the child’s expressed preference. As the child gets older, the court gives increased weight to the preference. When the child is 14, the court generally inquires of the child’s preference. This doesn’t mean that the Judge automatically does what the child wants. The Judge must still consider many factors in addition to the preference of the child. For many children, when they are 16 or 17, their preference may become so compelling that the court appears to decide solely on this one factor.

Divorce, children & the holidays

Every parent should want to raise their children to lead happy, healthy lives as productive members of society. If possible, divorcing parents want their children to be free of the stress and strife caused by breakup of the family. Unfortunately, the holiday season has the potential to create hostility, turmoil, chaos, and stress. This can cause children to hate the approach of holidays that once heralded joy and celebration. Parents who are separated or divorced need to plan the holidays in a way that is designed to reduce the stress on the children.
Adults, even adults who are not divorced, experience stress around the holidays. We spend too much money, plan events, and eat too much. Sometimes, this stress and tension causes people to take their anxiety out on the people they live with. It is important to understand the extra pressures at this time and that everybody suffers from the holiday season.
During the holiday season, children often dwell on the breakup of the family. This is natural as holidays are filled with family traditions and reminiscing on holidays past. Children are encouraged by media that if they are good, their wishes will be granted. There are even television shows where children wish for their parents to reconcile and, in TV fashion, they get their wish. In real life, the parents don’t magically reconcile. Children who wish for this miracle are bound to be disappointed. Instead of a reunified family, children have to adjust to a visitation schedule where the holidays are divided between two sets of parents and their extended families. Children need help from their parents and families to adjust to the new reality. The parents should understand the children if the children are sad or depressed about the holidays. Discussion and understanding may help the children adjust to the breakup of their parents.
Parents should think about holiday traditions. Some traditions may be painful for the children as they remind the children of what has been lost. Other traditions need to be followed as the children continue to enjoy the events. Another choice is to create new traditions. If each household develops different traditions, the children can look forward to time with each parent.
Each holiday lasts for a limited time. If the holiday is to be split between the parents, that means that each parent should have half a holiday with the children. As such, holiday visitation can become an annual negotiation between the parents.
Children can either dread the shortened holiday time or rejoice with two holiday celebrations. The result can be an attempt by each parent to indulge the children with excessive toys. Parents may feel guilty about the breakup or attempt to bribe their children to win their affection. Such actions are harmful to both parents and children. Children will learn to exploit the parents and make the holidays an annual problem instead of an annual celebration. Sometimes, parents will each buy the same gifts for the children as there is no attempt to cooperate. A better approach is for the parents to cooperate. They should develop a plan for the holiday that is fair and allows annual switching of time. If possible, the parents should take the child’s wish list for toys and discuss dividing the toys or buying toys that are similar but not identical.
Parents should remember that while they are no longer married to each other, they will always be parents of these children. Both parents will want to spend time with their children on the holidays for the rest of their lives. When the children are adults, they shouldn’t have to choose which parent they will choose for the holidays each year. Hopefully, the children will be comfortable inviting both parents to share their home for the celebration. Parents who demonstrate an ability to cooperate when the children are young are more likely to enjoy the holidays with the children in the future.
Issues surrounding children and holidays can be complicated and difficult to resolve.  An experienced family law attorney can help families resolve the issues and increase the celebrations of the holidays.

A family law case is now before the United States Supreme Court

It is rare when the United States Supreme Court hears a child support case. However, there is a case before the Supreme Court now involving such an issue. In the case of Turner v. Price, Docket No. 10-10, Turner was incarcerated for one year for non-payment of child support. The South Carolina Court that heard the trial did not make a finding that Turner was indigent and did not appoint an attorney to represent him before sentencing him to jail. If Turner was sentenced in a criminal case, he would have had a court appointed attorney. However, in a civil contempt case, under South Carolina law, he didn’t qualify for a court appointed lawyer.
It doesn’t make any difference to a person if they are jailed in a civil case or a criminal case. Jail is jail either way. Violation of a court order may result in a case for civil or criminal contempt. The court has the power to jail people for violation of court orders. Some people violate court orders and fail to pay child support because they can’t afford to pay the money. Others violate court orders and fail to pay child support because they choose to not pay the money. Clearly some people need the threat of a jail sentence or even time in jail as an incentive to pay child support. Frequently, the determination of imposing jail time is not known until the end of the hearing.
The case of Turner v. Price raises the issue of the constitutionality of imposing a jail sentence without the benefit of an attorney to defend the person before jail is imposed. Just as in criminal cases, the result of the civil contempt may be different if a lawyer is involved. This is an important issue as nobody should go to jail without due process and an opportunity to present a defense. These are not rights guaranteed in criminal cases. These are rights guaranteed to Americans under the United States Constitution. On the other hand, the state must pay for court appointed attorneys. If the defendant can’t afford an attorney and the state must provide one then the state must also pay for the attorney. As the states are cutting budgets and court systems are experiencing large cuts in their budgets, it is difficult to argue that they should allocate money to pay attorneys to represent parents who won’t pay child support. I suspect that any ruling on this case will extend to all civil contempts including contempts for non-payment of alimony and any other violation of a court order.
This case bears watching but we may be disappointed in the result. The court ordered the parties to brief the issue of incarceration for civil contempt without a lawyer and another issue. They also ordered the parties to brief the issue of whether the Supreme Court has jurisdiction to hear this case. If the court finds no jurisdiction, they won’t may any orders on the other issue. The briefs in this case are due to be filed in January and February, 2011.