DIVORCE or COMPLAINT FOR SEPARATE SUPPORT
The first step is to file a properly executed petition with the appropriate court. The court must have what is called subject matter jurisdiction that would entail satisfying the requirements of residency or domicile within the state and county dictated by statute. This threshold must be met in order for the court to have the authority to execute an order or decree of divorce, dissolution, separate support or other like orders. Once the initial petition/complaint is filed you have the right to file motions for temporary orders (or even emergency orders based on short notice) regarding issues of support, custody, visitation, or other matters that need to be decided on a temporary basis (until the final hearing on the merits or an agreement for resolution).
CUSTODY
This area of the law often brings more tension, hostility and anxiety than any other area of the law. Although we are frequently asked, custody is not based on the gender of the parent. A custody case brings many issues relating to what the best interest of the child or children are and who is the more suitable parent to have primary physical custody of the child or children. In some circumstances the court may consider a joint parenting plan. The majority of cases involve one parent having primary physical custody of the child or children. Then the issue of legal custody must be addressed. Legal custody means who will make the major decision about the child or children such as major educational, religious, social, and non-emergency medical issues. If the parents can communicate in the best interest of the child or children, legal custody is often shared. When the issues of legal or physical custody are contested the court may appoint a Guardian-Ad-Litem (GAL) to investigate the best interest of the child or children and provide a report to the court which may be considered at a trail or used in an effort to resolve your case. The court may in other circumstances require the family probation office to conduct an investigation. The cost of the GAL may be either shared by the parties or the court may in its discretion order one of the litigants to pay for his or her services.
VISITATION
Generally a court will grant reasonable visitation rights to a parent unless it is shown that the visitation may be against the best interest of the child. Supervised visitation (by either a trained professional, a visitation agency, or even a family member) may be considered if in the best interest of the children in certain circumstances. A non-parent such as a grandparent or a de-facto parent or other non-parent may also be awarded visitation in the discretion of the court if the non-parent has an interest in the welfare of the child.
If, you are not receiving visitation or your visitation is inconsistent and you are separated from the mother or father of the child or children, you should seek a court order to establish your visitation rights to eliminate any frustration or conflict associated with visitation and to set your visitation schedule. If you are not receiving the visitation with your child or children, as previously ordered by the court, you may consider filing an action to show cause concerning contempt for violating the court's order.
CHILD SUPPORT
Child support is money that is being used for the child. The payor (the non-custodial parent) may not agree with how the funds are being used, but that isn't their decision to make. The use of child support is at the discretion of the custodial parent (assuming that the custodial parent is not spending the money in such a way as to neglect the child).
Even if the custodial parent earns more money than the non-custodial parent, child support payments will have to be made.
Child support is not taxable to the recipient nor is it deductible to the payor.
Do not involve your children. Your children should have no knowledge of the adult related court issues and should not know about the child support related issues (even the amount).
If you are separated from the father or mother of your child or children you should obtain court orders of child support and possibly separate support for yourself.
If the father or mother of your child or children is not paying child support and is in violation of a court order you filing a Complaint for Contempt with the appropriate probate and family court may be necessary. Together with a Complaint for Contempt you may also serve the Defendant with a Motion to pay your legal fees, expenses and lost wages whereas if the Court finds there was a willful and knowing violation of the court orders and that the defendant has the ability to pay the Court may Order the Defendant to pay all of the above.
Remember to never use the children as pawns in your family related dispute. If child support payments are not made promptly, do not interfere with the visitation rights of the other parent. Child support and visitation are separate issues. You should go through the appropriate legal proceeding (contempt of court) to seek payment. The Court's interest is the best interest of the children. It is important for the children to have the love and emotional support of both parents.
While the Massachusetts Child Support Guidelines are used as a guide to determine the non-custodial parent's child support obligation, child support can also be negotiated with the custodial parent. If the parents can reach an agreement that the court determines is fair and reasonable the court may enter the agreement as an order of the court. The child support guidelines do not necessarily directly apply to every case (depending on the income of each parent and the individual circumstances). All child support arrangements should be made part of an order of a court. Consult an attorney BEFORE agreeing to any child support arrangement.
Child support will continue until the children are emancipated. Emancipation is defined by Massachusetts Statutory Law and may occur when the first of certain events happens not necessarily upon the child's 18th birthday. Also, it is important to memorialize in the parties divorce agreement emancipation language.
MODIFICATION
The court may consider a modification of a prior Order or Judgment of the Court based on a significant change in circumstances. It is important to review your situation with an experienced attorney to determine if the circumstances may warrant a change. The appropriate pleading would then be filed with the court and served on the opposing party. Depending on the modifiable circumstances, Temporary Orders of the court may be requested upon the filing of the appropriate Motion.
For further information about the attorneys at Finbury, Sullivan & Benger, please contact us today.
