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Author: Estela Matta, Attorney & Counselor at Law
Family Law Attorney:
Divorce/Separation, Custody and Child Support, Domestic Violence
Wills, Living Wills, Trusts, Estates
New England Law|Boston J.D.
Columbia University B.A.
It is frequently asked by parents living under parenting schedules ordered by the Court, what can they do to get the other parent to be more cooperative in last minute or long term plans that conflict with the parenting schedule.
Frankly, there are not that many options. A parent has the right to go to court and seek a “modification” or change to an existing order where they can show “substantial change in circumstances” from the date of issuance of the order. Any change will be deemed a modification for court filing purposes, even if it includes a request to terminate the order. So option (2) is to file a Complaint for Modification of the order or judgment and specify why a change is appropriate and what changes you wish made. In the case of a parenting schedule, a petitioner must include the details of the existing order and what parenting time changes or modifications are requested, e.g. You don’t want to require permission from non-custodial parent for out of state vacations, or you don’t want over-night visits with other parent, or parties shall not UNREASONABLY withhold consent for child activities with other parent, etc.
The Court looks to parents’ ability to resolve internal conflicts as evidence of their parenting skills. Too many of these types of arguments brought before the Court could lead to loss of the custody of the child, in extreme cases, or more typically to court ordered parenting classes at parties expense. The first thing you should try (option 1) is find a solution between yourself and the other parent. That means compromises and barters. Trade something the other parent really wants for what you want–an extra day next weekend, an extra holiday… It can all be negotiated, if the parties are willing.
If that fails, one can try to file an “emergency” Motion to be heard very quickly by the Court before a specific dated event such as a family gathering, a wedding or a planned vacation. A reasonable argument to be made in such an emergency motion is that [Parent] is UNREASONABLY denying an exception to the parenting schedule and refusing to negotiate an alternative, without regard to the best interest of the child. However, a word of caution, this may not be seen by the Court as an “emergency” and may deny you a swift hearing.
It may be worth it to file a complaint for modification to address some of the details that have arisen while the present orders have been in place, which may have been unforeseen at the time of the judgment or order. If you find that you are persistently having these type of communication break downs, it may be time to revisit your present orders.
Lastly, if either party chooses, unilaterally, NOT to abide by the schedule order, they run the risk of being charged with contempt of court. Do so at your own peril.
Comments based on Massachusetts Domestic Relations Law. Not provided as legal advice.
Estela Matta, Esq.
Dissolution of a marriage can only happen through a divorce decree issued by a Court of competent jurisdiction. However, many states issue “legal separation”, “conversion divorce”or “separate support” judgments– which fall short of a divorce but still address certain marital situations.
A legal separation and separate support are types of applications to the court to recognize that parties wish to live “separate and apart”, wish to formalize financial arrangmeents but are not seeking a dissolution of the marriage. These proceedings address primarily financial arrangements between the parties, and custody if children are involved. They do not address distribution of marital assets such as the marital home or pensions, etc. And of course they do not dissolve the marriage. The biggest distinction between separate support and legal separation is in individual state laws. New York recognizes “living separate and apart” as a “legal separation”, whereas Massachusetts does not. It will interpret the issues addressed in any MA proceeding for separate support more narrowly than a state like NY, that allows a legal separation to be “Converted” into a divorce after one year of the filing. MA does not have conversion divorces, i.e. a legal separation that can be converted into a complaint for divorce upon which judgment for divorce may be entered. MA requires a new action specifically calling for the termination of the marriage.
A person wrote to me asking about housing arrangements between the spouses in what appeared to be a “living separate and apart” situation where no legal action of any sort had been commenced. This lead to a discussion of distinct ways in which parties may resolve end of marriage or separation problems:
If you are married, [housing] is an “extra-legal” question, meaning the law does not cover this subject because the law does not interfere with how a husband and wife make out their living arrangements; so it is up to you and your spouse to come to some agreement you can both live with.
If you are already divorced, you have to look to the divorce judgment for any express terms and conditions that address this question. Typically something is said in the judgment about distribution of the marital home–who gets to stay, how has to leave, if one party has to buy out the other party’s interst or refiance a mortgage, etc.
If you are still married, but living apart you have 2 options under MA law: filing for “Separate Support” which brings the issues of care and maintenance before the court but does not conclude a divorce; or one might have to consider filing for divorce. At that juncture, the courts will step in and force a distribution of assets and other settlements provisions which could include a housing allocation for wife and (minor) children. Its best to consult with a local lawyer to get a better understanding of the process and laws involved in your state, as well as an opinion tailored to one’s specific facts and circumstances.
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MA adopts the position that ALL assets of the parties (individual and marital) are put on the table for distribution at time of divorce. Many states honor “separate property” doctrine at time of divorce–that is property the parties’ owned before marriage or in their name only — but MA does not. So, any pension in place during the time of marriage is subject to division. Its very hard to get away from the strict letter of the law when it comes to pensions; however, you and your spouse are free to negotiate and make any arrangement you want, that is acceptable to the Court, if you settle your divorce by agreement. You can negotiate the distribution of assets (including pension funds), custody, child support, alimony–ALL OF IT. You can have a lawyer draft an divorce agreement which addresses all the issues that must be addressed, present it to the Court and once approved, the Agreement will be incorporated into the final judgment of divorce and those will be the orders you will live by thereafter.
Your spouse my waive the right to her share of the pension funds in exchange for something or for nothing in return. It’s the spouse’s right to waive. If she is truly willing to make the transition as painless as possible she might consider waiving her interest in the pension, or exchanging it for some benefit she wants, such as paying for college for the kids or keeping the marital home–this, of course, should be based on the value of the pension assets she is waiving. Typically, the spouse is entitled to half of the pension funds.
Health insurance: You can voluntarily agree to continue the children’s health insurance after the divorce. In fact, if the spouse doesn’t have a comparable policy or if the children are dependent on your coverage for their insurance you may be ordered by the court to continue their coverage as part of the child support order.
Another thing you might want to consider is a separation agreement, if you and your spouse are not ready for a divorce but want to live apart. MA doesn’t recognize legal separation but does have provisions for separate support. This addresses living apart, the support for the children and possibly support for the spouse; it will NOT address distribution of marital assets or the divorce itself. Separate Support judgments in MA do not convert into divorce (as in some other states); if you decide you want a divorce, you would have to start an action distinct from the separation papers.
Hope this was helpful 🙂
Estela Matta, Esquire
Let me correct you about certain assumptions your question seems to be making:
In today’s environment, “fault” is not necessary to prove against the other spouse to get a divorce. In other words, infidelity, cruelty, abandonment etc., does not have to be plead or proved to get a divorce, and frankly most lawyers do not file a fault based divorce because it only means more expense and time (though of course the option is still available). There are more difficult issues that have to be argued, such as custody, support and distribution of marital assets– which is where the modern divorce attorney should focus time and energy.
Children born to a married couple gives BOTH parents legal and physical custody rights unless and until a court of law says otherwise. So there is no need for you to “give up custody” of your children simply because your spouse is alleging or threatening to allege infidelity. The topic may never come up and the Court would rather focus on who is the appropriate parent to have physical custody of the minor children. The Court prefers to see shared legal custody and physical custody to one parent. So don’t be in too much of a hurry to give up your lawful rights to your children.
To answer your question: custody and all matter relating the the care of children can ALWAYS be revisited while the children or minors or in college when they are older (unless you surrender these rights through an adoption –which is non-reversible).
I suggest you consult with a Family Law attorney, including my own firm, and get the right information about what is likely to happen in a divorce action, and what rights you have unless you voluntarily give them up.
Respectfully, you seem to be a bit confused about the process involved in the dissolution of a marriage. Lets start with: you cannot get a divorce if you cannot locate the other party. To begin the divorce process you must file a Complaint for Divorce with a court of competent jurisdiction (in Massachusetts, a Probate & Family court in the county where at least one of the parties resides). The Complaint must be filed and SERVED on the other party. Proof of service must be filed with the court. The court will then schedule a hearing (anywhere from 30 – 60 day later). But that is only the beginning…
The fact that you “have no assets TOGETHER” is not controlling, since under MA law, ALL ASSETS of BOTH parties (whether held in joint title, owned before the marriage, acquired during the marriage or owned individually) are subject to distribution at the time of dissolution of the marriage.
Your first concern must be to locate the other party. If he or she cannot be found and served, no court will allow the divorce to proceed–its a Constitutional requirement.
If the divorce is uncontested (which you cannot determine at this point because you have not conferred with the other party) the parties can file a joint petition for divorce, file an Agreement to be incorporated into the judgment of divorce, etc., that settle by stipulation all the issues the court will require be addressed in order to be satisfied that all the issues have been resolved by the parties voluntarily. If the the other party objects (to either the divorce itself or any of the proposed terms) the matter will have to be litigated in court. There are innumerable permutations that can occur if the other party objects. Notwithstanding the fact that today parties have the option of filing under “irretrievable breakdown of the marriage” –essentially a “no fault” provision, marriage is a special type of contract and the State and the Court take the dissolution very seriously. A judgment of divorce can be entered anywhere from 60 days to several years after the action has been commenced.
The question was put to me: What do I say on the motion form provided by the court when it asks “Motion For ______________”?
I’m going to assume you are a layperson (nonlawyer) trying to file something in court “pro se”–that is, on your own and without a lawyer. A bit of civil procedure rules are required here: You can only file a “motion” when a case is already before the court; so if you do not have an active case (still being litigated and there has been no judgment entered), you must start an action by filing a Complaint. In the Probate & Family Courts of Massachusetts, this may be a Complaint for Modification [of an existing Order or Judgment], a Complaint for Contempt, A Complaint for Custody/Visitation, a Complaint to Establish Paternity, A Complaint of [Child] Support, a Complaint for Divorce, etc., to start a judicial review of your concerns. This is subject to all the rules of procedure controlling service and filing to commence an action. (See Mass. Rules of Civ Pro, Rule 4; http://www.mass.gov/courts/case-legal-res/rules-of-court/civil-procedure/mrcp4.html) Then, once the action has been commenced, served and joined, either party (Plaintiff or Defendant) can proceed to make Motions.
A “Motion” is so called because the party is seeking to “move the Court” in the direction of granting an order. It is “persuasive writing”, and typically will include not only a request for the [temporary] relief sought, but will be accompanied by a sworn affidavit from a personal with actual knowledge of the facts, upon which the Court may rest its decision. Typically, the moving party (also called the “movant”) will attach exhibits and further evidence in support to the moving papers. A motion can be made for almost any imaginably relevant request for interim relief (that’s why “motion practice” can be tricky and complicated). Any request made to the Court or regarding the proceedings is made by motion; so, a motion to continue the hearing (adjourn to another date), a motion for temporary orders, a motion to be relieved as counsel, a motion to grant attorney fees –virtually anything– OTHER THAN THE ULTIMATE QUESTION reserved for judgment, can (and must) be requested of the Court by “motion”.
A further civil procedure note here: service of motions must be in keeping with the statutory time to serve upon opposing party before a hearing date–typically ten days–in order to allow the respondent to file and serve a written response, if they so choose. All motions must be filed, calendared for hearing before the Court and served on all parties. Proof of service of the moving papers must be filed with the court. All motions will be heard before the Court, with both sides present and given an opportunity to address the issues, for and against, before a decision will be rendered by the Court. A last note here: Motion practice is used in both civil and criminal proceedings, but of course, criminal case motions follow the rules of criminal procedure not covered in this discussion.
Decisions on motions are usually of a temporary or interim nature; they may be modified, vacated or over ruled in the Final Decision and Judgment of the Court. However, decisions and orders on motion may also be incorporated into the final judgment–and they often are!
To answer your question specifically, the “Motion For” on the motion form is followed by: whatever you want from the court, e.g. Motion to Continue the hearing, or motion to waive appearance, a motion for temporary custody…you get the picture. In the scenario presented in your fact pattern, you would file a Complaint for Modification [of Custody/Visitation], then file a Motion for Temporary Orders [to change the visitation schedule], and “such other and further relief as the Court deems appropriate”.
While I know there is a trend in the courts to encourage self representation, and the courts have tried to streamline and simplify procedures, Family Court matters are serious, and should not be undertaken by inexperienced pro se litigants, anymore than a layperson should try to build their own house. Consult with attorneys (plural) and retain counsel to structure your position in a light most favorable to the court and to help you navigate through these complex procedures and rules of court.
Respectfully submitted,
Estela Matta, Esq.
I was estranged from my Mother who passed away recently, is someone obligated to let me know details of the will? As a youngster I was hit by a car, my parents sued on my behalf, 50 years later I have never received a penny every time I asked my Mother she would change the subject, Was wondering if it’s a waste of time to pursue this as I have permanent damage to the leg that was broken in the accident You have two separate issues here: Did your mother leave a valid will and how can you recover the damages award received in a personal injury action many years ago. In all likelihood, your award was an “Infant Compromise” and the funds should have been placed in a restricted account for your benefit when you came of age. That’s how the theory goes…
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I was estranged from my Mother who passed away recently, is someone obligated to let me know details of the will? As a youngster I was hit by a car, my parents sued on my behalf, 50 years later I have never received a penny every time I asked my Mother she would change the subject, Was wondering if it’s a waste of time to pursue this as I have permanent damage to the leg that was broken in the accident You have two separate issues here: Did your mother leave a valid will and how can you recover the damages award received in a personal injury action many years ago. In all likelihood, your award was an “Infant Compromise” and the funds should have been placed in a restricted account for your benefit when you came of age. That’s how the theory goes. Often parents do not follow these rules and, since the Court has little enforcement power, the award is misappropriated. Sadly, after so many years, its very likely that none of these funds survived.
Regarding your mother’s will: check with the local Probate & Family court to see if a will has been presented for probate. If you know or can find out the name of the lawyer who prepared the will, you can try to contact him/her. The Executor of the will is obligated to contact each party named in the will and inform them of the probate proceedings. Bear in mind,though, that even if your mother does have a will, there is no law requiring her to leave you a part of her estate.
But you still have a few options: If there is a will and you are not named, you can still sue the estate for recovery of the personal injury damages award you never received. If there is no will, you can seek your portion of the intestate division of the estate.
You must speak with a lawyer to explore your rights and obligations.
