Don't fall for this child support trap!

It is not unusual for custody arrangements to need adjustments to change as the children get older. Visitation schedules often change. Children's friends and activities need to be taken into account. Sometimes children move from one parent's home to the other and primary custody changes. The courts encourage cooperation between parents and generally support all custody and visitation changes that occur through agreements. Even if these changes occur without approval from a Probate Court Judge they seldom are the cause for a contempt action in court. It is almost unheard of a court actually finding a parent in contempt for not returning a child to a parent where there is an agreement for a change of schedule.

Changes in child custody can effect the amount of child support paid. The current Massachusetts Child Support Guidelines use as a factor the amount of time spent with each parent. As a result, when child custody changes, the amount of child support changes as well. Parents who can cooperate to change custody and visitation for the benefit of the child may also cooperate to adjust child support. Just as parents change custody without judicial approval, they may also change child support by agreement and without judicial approval. This results in a trap for the parent who reduces or stops paying child support.

In the case of Taylor v. Taylor, Mass.App.Ct. 13-P-997 (5/13/2014) the daughter moved from father's home to mother's. The parties agreed that the mother would stop paying child support due to this change in custody. The father even signed a written waiver of child support. Three years later the father filed a contempt for unpaid child support. The court found that despite the written waiver by the father, the mother still violated a court order and was in contempt of that court order. As a result, she had to pay the three years of child support with interest and penalties even though the daughter lived with her and she supported the daughter. The trap is that despite an agreement of the parties, the mother paid to support he daughter and then paid years of child support to the father.

While Massachusetts encourages agreements between the parties, it is necessary to seek approval of financial agreements by a judge. There is a simplified procedure for approval of such matters. Frequently, the court approves these agreements without the necessity of a court appearance.

If parties are contemplating an agreement to modify a child support order, they should consult an experienced family law attorney to avoid falling into the child support trap.

Don't fall for this alimony trap!

In 2014 I wrote about a child support trap. In this article I described the trap happening when two parents agree to change child support between themselves without court approval. After years of following the out of court agreement, the parent who received less support files a contempt action. Typically the court will enforce the order and order payment of back child support even if the out of court agreement is fair, in writing, and signed by the parties. The out of court agreement is not recognized as valid for any reduced payments made before the filing of the contempt. A similar fact patern was the subject of a case involving alimony.

In the case of Smith v. Smith, Mass. App. Ct. No. 17-P-765 (6/7/2018) the divorce left the Husband paying alimony to the Wife. Over the years, the parties entered into a series of agreements resulting in the Husband paying money for the benefit of the parties' adult children and reducing the amount of alimony paid to the Wife. After a number of years of these reduced payments, the Wife filed a contempt because the payments by the Husband were less than the court order. Unlike cases involving child support, the Husband argued equitable defenses based on “detrimental reliance” called laches or estoppel. The Court did not rule on the detrimental reliance argument. Instead, the Court ruled that alimony can be modified retroactively to consider the agreements of the parties. The retroactive modification must be based on all of the statutory factors that a Judge is require and permitted to consider when making an alimony decision. The Appeals Court sent the case back to the trial judge to make a decision based on the alimony factors. This probably will cause a second trial for the parties but it is likely that the Husband will have some benefit from a retroactive alimony modification. However, if the Husband had a significant increase in income or the Wife had a significant decrease, it is possible that the Husband could end up paying more in alimony than the original order.

The best course of action and the correct cause of action is that if the parties make an agreement to modify alimony or child support that they should seek court approval of the agreement. Massachusetts has a simplified procedure for modifications by agreement. They are typically approved based on the documents only and don't require that the parties physically appear in court.

If the parties don't want to seek court approval then they run the risk of one party paying large sums of money for arrears of alimony or child support. In this instance, they should put their agreement in writing and each party should sign the agreement before a notary public. While no court has approved this, I have a suggestion on how to write the agreement. Massachusetts does allow alimony to be paid “in kind.” This means that alimony can be paid directly to creditors instead of to the ex-spouse. As an example, if the wife has a history of not paying the mortgage, then the court may order the Husband to pay a portion of alimony each month to the mortgage company and the balance to be paid to the Wife. This concept can be applied to out of court agreements. Using the Smith case as an example, I can illustrate my suggestion.

In the Smith case, the Husband was ordered to pay $650.00 per week. One of the reasons for reduction of alimony was that the Husband paid tuition for the daughter's graduate school tuition. The could have written an agreement that state that the two parties agree to pay $400.00 per week for the daughter's tuition with each party paying $200.00 per week. They could agree that the Husband will pay the Wife's $200.00 per week directly to the school and pay the wife the remainder of $450.00 per week. This could be viewed as a payment in kind and may not be considered a contempt. The problem with this is that the Wife would be taxed on the $200.00 per week and the Husband would have a tax deduction.

When considering an agreement to change a child support or alimony award, the best way to proceed is to consult an experienced family law attorney who can draft an agreement and submit it to the court for approval.

My Ex and I agree to change the terms of our divorce. Do we have to go to Court?

Once a Massachusetts Court has made an order or judgment in a divorce or paternity case it is enforceable by all of the powers of the Court and State for enforcement of judgments. This means that any change must be approved by the Court. Of course minor changes in the parenting plan don't need court approval. (If the parties swap weekends, as an example, no court involvement is required.) However significant changes, such as anything to with money or finances will need court approval.

There is a trap if the parties don't change the court order.  As an example, assume that the divorce required the Husband to pay $300.00 per week. The ex-spouses agree that the child should spend more time with Father and enter into an agreement for the child to live half of the time with each parent. Because the child is with each parent for an equal amount of time, the parents also agree that the Ex-Husband should stop all child support payments. The Ex-Husband, relying on this agreement, stops the payments. Five years later, the Ex-Wife files a contempt in Probate Court for the five years of unpaid child support. Since the Court never approved the agreement, the original order is still enforceable. The Ex-Husband owes five years worth of support or $78,000.00 plus interest and possibly attorney fees.

This trap can be avoided by the parties seeking Court approval of their agreement. Parties tend to avoid court because they think it will cost a lot of money. However, the Probate and Family Court has a simplified proceedure to approve agreements of this nature and have forms available on their website which the parties can fill out and submit. This procedure is explained in Rule 412 Of The Supplemental Rules Of The Probate And Family Court.
Every person in Massachusetts who agrees to change the financial terms of child support or spousal support should not rely on the agreement. Instead, they should use the simplified proceedure and have a judge approve the changes. Then, they can safely rely on the order of the court. An experienced Massachusetts Family Law Attorney can help parties present their agreement to the Court for approval.

Child support agreements need court approval

Previously, I wrote about the dangers of parents making an agreement for child support and not

seeking approval from a court. A recent case, Zizza v. Zizza, from the Massachusetts Appellate Division (Oct. 27, 2014) is an example of the problems created when parents make an agreement without judicial approval.

In the Zizza case, the parties, after a foreign divorce, entered into a private agreement regarding property division, child custody, visitation, and child support. The agreement also had a clause that stated that the agreement could not be be modified by any court. This agreement eventually resulted in litigation in Massachusetts District Court with the court ordering a modification of the child support obligation. On appeal, the Appellate Division upheld the modification of child support. The court added a comment which explained that the Massachusetts Legislature has declared that it is against public policy to make an agreement that prevents the courts from changing child support obligations.

If you are about to make an agreement for child support you should consult a lawyer who is experienced in family law to make sure you don't fall into a child support trap.