Automatic Restraining Order Upon Filing for Divorce

Suppose Jack filed for divorce, and Jill is left confused, unaware of what comes next in the divorce proceedings. Jill is served the divorce papers and realizes that there is an automatic restraining order as part of the summons and complaint. Frantically, she calls a divorce attorney, wondering if a restraining order is all about. Could it mean she cannot have contact with her ex-spouse? Is it possible that she won’t be able to access her financial accounts or her home?

As divorce attorneys, we receive many inquiries regarding the initial paperwork filed in a divorce proceeding. Whether you filed for divorce or are defending a divorce action, you may have heard that Massachusetts Probate and Family Court attaches an automatic restraining order against the defendant spouse at the time of the divorce filing. What is an automatic restraining order; how can you follow it; and what are the sanctions for not following it?

In every Massachusetts divorce case, there is an automatic restraining order. This automatic restraining order is present when the plaintiff-spouse files for divorce, and when the defendant-spouse is served the initial divorce complaint it as part of the Summons. The automatic restraining order is present throughout the entire divorce case, unless modified by agreement of the parties or order of the Court. Upon entry of the divorce judgment or decree, the automatic restraining order is terminated and vacated.

The automatic restraining order, which is codified as Massachusetts Supplemental Probate and Family Court Rule 411, provides for certain restrictions to parties in a divorce. It states the following:

“(1) Neither party shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of any property, real or personal, belonging to or acquired by either party, except: (a) as required for reasonable expenses of living; (b) in the ordinary and usual course of investing; (d) for payment of reasonable attorney’s fees and costs in connection with the action; (e) written agreement of both parties; or (f) by Order of the Court.

Selling your stocks? Giving your children some of your antique jewelry? Hiding your ownership in a partnership or business? All of these could be considered by the Court to fall under the protections of the automatic restraining order, and engaging in these acts despite the order may expose you to sanctions by the Court.

Additionally, Rule 411 prohibits either party from incurring any further debts that would burden the credit of the other party—this includes things like unreasonably using credit cards or bank lines, as well as borrowing against a credit line or the marital residence. Rule 411 also prohibits the spouses from changing the beneficiary of any life insurance policy, pension or retirement plan, or pension or retirement investment account, as well as from causing the other party or the minor children of the marriage to be removed from the coverage.

The goal of an automatic restraining order is to ensure that the parties’ do not make any drastic changes during the divorce proceedings. If one party would do something to give themselves an unfair advantage in the proceedings, or on the other hand, unfairly place the other party at a grave disadvantage, this could greatly impact the outcome of a case.

A question you may have is: what happens if you or your ex-spouse violates the automatic restraining order? Is there a way to make the non-compliant party comply? Are there any repercussions for violating the order?

If either party violates the automatic restraining order provision of Probate Court’s Rule 411, the other party can either file a formal complaint for contempt with the Court. A complaint for contempt arises when a party does not agree with a court order. It is a judge’s decision as to whether or not the party has violated the automatic restraining order. If so, the party will be held in contempt of court, and the judge will impose sanctions based on the severity of the violation. Sanctions are court-ordered penalties for disobeying a law or rule—in this case, they may range from fines to unfavorable rulings on certain motions.

If you need assistance with an automatic restraining order or have any questions about divorce or family law issues, contact our experienced family law attorneys. Call 978-225-9030 during regular business hours or complete our online contact form, and we will respond to your phone call or submission promptly.

Enforcement of Child Support Orders

As part of James and Jeri’s divorce, James is ordered to pay $153 per week in child support. For the past two months, James has not paid any support to Jeri. What could happen in this case?

There can be several consequences for parents when they do not pay their child support obligations. If a court orders a parent to pay child support, the parent must make those payments. If the payor parent (the one ordered to pay) fails to make the payments, the parent seeking the payment must file a complaint to enforce the order. This complaint is known as a contempt complaint.

Once a contempt complaint is filed, the payor parent will receive a summons with a hearing date. At the hearing, a judge will consider evidence. This evidence can include any changes in circumstances and the parties’ financial statements. If the judge determines that the payor parent is in contempt for not making child support payments, he or she will decide on the amount that is past due and the date by which the past payments must be paid.

Depending on the court order, the judge may order the payor parent’s wages to be garnished through the Department of Revenue. Then, the court will have clear records of how much that parent owes. In some cases, the order may indicate that the payor parent should pay the other parent directly. This could make it more difficult to figure out the accurate amount of past due child support.

 

What Else Can the Judge Do?

 

If the judge determines that the payor parent has not made child support payments, this ultimately means the parent is in contempt of court for violating the court order. The judge may enforce the order and will apply an appropriate punishment depending on the situation. This may result in a fine, suspension of the parent’s driver’s license, or even jail time. Additionally, the parent may be subject to giving up other rights. For example, the parent may not be able to get a passport. Or, the parent may be barred from being issued a variety of state-issued licenses. Ultimately, the judge will require the payor parent to pay the custodial parent the amount owed in past child support.

Jail time may seem like a drastic punishment for not paying child support. Yet, the courts see it as an appropriate motivator. The payor parent will be released from jail once she or he pays. When dealing with past due child support payments, the court is ultimately most concerned with the well-being of the child. So, the court takes the enforcement of child support orders very seriously.

If you have any family law questions, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form here, and we will get back to you at our earliest opportunity.

 

 

The Standard of Proof in Civil Contempt Cases

How do civil contempt cases work? What is the standard of proof: in other words, what must the plaintiff prove in order to prevail in a contempt action?

Kyle is divorced and has primary custody of his two children. Kyle is concerned that his former spouse, Kevin, constantly returns the children hours later than he is supposed to after visiting with them. Kevin has told Kyle repeatedly that he “doesn’t care” about the time he is supposed to bring the kids back, and that he will continue to bring them back “on his own time.”

Mariah received an order of alimony during her divorce from her former spouse Michael. Now, Michael hasn’t paid the appropriate payments ($500 weekly) for the past two months. Michael refuses to talk to Mariah and will not return her calls.

What do Kyle and Mariah have in common? They may both file an action for contempt against their former spouses.

Contempt actions

Contempt, generally, involves a failure to comply with something that the court has ordered. An action for contempt may be appropriate where the defendant has demonstrably disobeyed a court order. Just a few examples include:
• refusing to pay the appropriate amount of child support or alimony ordered by the court;
• refusing to leave the marital home when ordered to do so;
• violating a court order of protection from abuse or harassment;
• violating the terms of a child custody order or the provisions of parenting time.

There are two types of contempt: civil and criminal. In criminal cases, criminal charges are brought against the defendant for refusing to comply with a court order. In civil contempt cases, the plaintiff files a complaint for contempt against the defendant. The purpose of a civil action for contempt is to ensure the defendant’s compliance for the benefit of the plaintiff.

The standard of proof

In order to prove his or her claims, the plaintiff will have to meet the appropriate standard of proof. In cases of civil contempt, this means the plaintiff must prove “a clear and unequivocal command and an equally clear and undoubted disobedience.” 1

This means the plaintiff must show, first, that there was a clear and unambiguous court order. In one case, the Appeals Court held that there was no contempt by the wife when she disclosed certain financial misdeeds of her husband. The court held that the divorce decree was ambiguous as to this disclosure and did not specifically prohibit the wife’s conduct. 2

The plaintiff must show, second, that the defendant clearly disobeyed a court order. In one case, the Appeals Court held that there was no contempt by a wife who refused to allow her small children to visit their father out-of-state, unless an adult escort would accompany them on their flight. The husband filed an action for contempt and prevailed at trial, but the Appeals Court reversed, holding that the mother’s “reasonable” concerns and requests did not amount to a clear and undoubted disobedience of the divorce judgment and custody order. 3

If you need assistance with a contempt action or other domestic relations matter, our experienced family law attorneys may be able to help. Contact our offices to schedule a free consultation.

1 Larson v. Larson, 28 Mass. App. Ct. 338, 340 (1990).
2 Sax v. Sax, 53 Mass. App. Ct. 765 (2002).
3 Pedersen v. Klare, 74 Mass. App. Ct. 692 (2009).

Criminal Penalties When One Abandons a Spouse or Minor Child in Massachusetts

Under what circumstances do criminal charges apply to a person who willfully or negligently refuses to take care of an immediate family member, such as a spouse, child, or parent? Several Massachusetts statutes are applicable to this question.

First, Massachusetts makes it a felony for a party to abandon a spouse or child under the following circumstances:

(1) he abandons his spouse or minor child without making reasonable provisions for the support of his spouse or minor child or both of them; or

(2) he leaves the commonwealth and goes into another state without making reasonable provisions for the support of his spouse or minor child or both of them; or

(3) he enters the commonwealth from another state without making reasonable provisions for the support of his spouse or minor child, or both of them, domiciled in another state; or

(4) wilfully and while having the financial ability or earning capacity to have complied, he fails to comply with an order or judgment for support…

Another Massachusetts statute applies the above circumstances specifically to cases where a party abandons or fails to support a child born out of wedlock. For all of the above, the state provides for criminal penalties, including jail time which may range as high as ten years in state prison under some circumstances. The penalties are laid out in Massachusetts General Laws, chapter 273, section 15A. Of course, other issues also might arise—civil complaints for non-support or contempt, for example, by the other spouse or other parent, as well as actions brought by the Massachusetts Department of Revenue, which has standing to enforce child support orders.

Furthermore, Massachusetts has in place a “filial statute,” which makes it a crime for a party to neglect a parent under some circumstances. The law notes: “Any person, over eighteen, who, being possessed of sufficient means, unreasonably neglects or refuses to provide for the support and maintenance of his parent, whether father or mother, residing in the commonwealth, when such parent through misfortune and without fault of his own is destitute of means of sustenance and unable by reason of old age, infirmity, illness to support and maintain himself, shall be punished by a fine of not more than two hundred dollars or by imprisonment for not more than one year, or both.” The statute does make exceptions for adult children whose parent failed to support the child during his or her minority—in other words, one does not have to support a parent who had abandoned him or her during childhood. Also, the statute notes that it is not considered neglect for a party, who is one of two or more children, to provide proper and reasonable contribution towards the support of the parent.

If you have any questions about issues of divorce, custody, or support, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.