Are Complaints for Contempt getting Harder to Win?

A Complaint for Contempt is the action by which you can request that the Court make a finding and issue sanctions for failure of one party to meet the obligations and requirements of a Court Order or Judgment. Sanctions can include civil fines, payment of attorney's fees and costs, modification to existing orders or judgments, or in some cases incarceration.

To succeed on a Complaint for Contempt you must prove two things: first, you must prove that there has been a "clear and unambiguous" order or judgment and second, you must prove that the other party "knowingly violated" the order.

If the Contempt involves a financial order, depending on the remedy you are seeking, the US Supreme Court case of Turner v. Rogers may also now require that you prove an "ability to pay." Traditionally in Massachusetts the Court's have allowed "inability to pay" an order as a defense to certain enforcement attempts (such as incarceration). This wouldn't excuse the debt, but allow a Defendant to postpone payment or make payments over time.

In Turner, the SJC seems to have moved the burden of proving an "ability to pay" to the Plaintiff, if the Plaintiff is requesting incarceration as enforcement. In addition, Turner suggests that when a Plaintiff has assistance (from counsel or DOR), the state may need to provide the Defendant with counsel if incarceration is possible.

While the ruling does not require that the Defendant have counsel when Plaintiff doesn't have counsel, " the State must nonetheless have in place alternative procedures that assure a fundamentally fair determination of the critical incarceration-related question, whether the supporting parent is able to comply with the support order."

In Massachusetts, some Judges have expanded on this case and expressed that to find a person in Contempt now requires an express finding of ability to pay, which may need more than just a showing that Defendant's financial statement is incomplete.

We, therefore, offer the following practice tips when seeking to prosecute a Complaint for Contempt in Massachusetts:

Request a Financial Statement (and possibly further discovery) from the Defendant in advance of the Contempt hearing.
Bring a Proposed Judgment and Proposed Findings of Fact to the Contempt hearing.
When necessary, subpeona information regarding bank accounts or employment to assist in proving a Defendant's "ability to pay."

Comments

What is the purpose of the Divorce Nisi waiting period?

In Massachusetts the statutory waiting period after a Judgment of Divorce and before the divorce becomes final (or absolute) is called the Nisi period. After a divorce case settles or goes to trial, a Judgment of Divorce Nisi will issue and it will become Absolute after a further ninety (90) days. This waiting period serves the purpose of allowing parties to change their mind before the divorce becomes final. If the Judgment of Divorce Nisi has issued but not become final yet, and you and your spouse decide you don't want to get divorced, then you can file a Motion to Dismiss and the Judgment will be undone. Although many of my clients who are getting divorced think the idea of getting back together with their ex sounds crazy, I have had cases where this happened. In addition to offering a grace period to change your mind, the Nisi period has three other legal effects: 1. The most obvious effect of the waiting period is that you cannot remarry during the Nisi period, be...

New Massachusetts Child Support Guidelines (2021): Big Changes, Little Changes, Typos & some Unexpected Results

UPDATE: The court has released a web calculating version of the 2021 MA Child Support Guidelines Worksheet . It resolves some of the typos referred to below, but the unexpected calculations still apply. Every four years, per federal mandate, the Massachusetts Probate & Family Court revisits the Child Support Guidelines through the work of a Task Force appointed by the Chief Justice. The 2021 Massachusetts Child Support Guidelines were recently posted. They take effect on October 4, 2021. If you are interested in a training on all of these changes to the new Child Support Guidelines: DMTA Presents the 2021 MA Child Support Guidelines Update – Attend this event to learn the key updates you need to know for your mediation clients. Presented by Justin Kelsey of Divorce Mediation Training Associates and Skylark Law & Mediation, PC . For a full comparison of all the tracked changes between the 2018 and 2021 Massachusetts Ch...

Online Tool for Creating Parenting Plans

It is our hope that all families find a way to resolve conflict peacefully. This is especially true when children are involved. Divorced or separated parenting has many complications and the first is just deciding how to share time with a child from two separate households. Developing a schedule can result in a lot of tension, especially if parents have trouble picturing how this new schedule will interact with their work schedules and the schedules of their children. To help make this easier, we've created an online tool for creating parenting plans that is simple and easy to use: We encourage parents, regardless of the process they are using to divorce, to use this form to assist in evaluating and settling custody disputes. The form allows you to choose between the Model Parenting Plan proposals or customize your parenting plan over a four week period by clicking directly on the form. When you click on a section of the calendar it switches between ...

Search This Blog