Boston Divorce Lawyer – Boston Divorce & Family Law Attorney Blog

Part III of an ongoing series exposing the truth about Family Law Myths.   To see the truth about more Family Law Myths, see Parts I and II.

Myth: If I’m completely uncooperative, I can stop the case from moving forward.

Truth: All too often, people believe that if they refuse to participate in the process (divorce, child custody, child support, alimony, paternity, etc.), the process can’t move forward.  The truth is that while this might stall the proceedings temporarily, it won’t work for long.  Not only will the process move forward, but it will more than likely end with a final result that you absolutely hate.  Why?  The courts can only make decisions based on what is presented to them, and the other party has no responsibility to tell them your side of the story.

Your failure to respond to filings and refusal to show up for court dates hurts only you.  Only you (and your attorney) can defend your interests.  The thought of going to court makes everyone anxious.  It’s not a pleasant way to spend your day.  But what’s at stake is too important to let anxiety get in the way.  If you ignore the process, the process will go forward, ignoring you.

Myth: A good lawyer can be found cheaply or for free.

Truth: You wouldn’t walk into the super market and ask for free food.  A brand new car with an incredibly low price tag would probably make you suspicious.  So why would you expect a good family law attorney to be cheap or free?  Like all other things, when it comes to legal services, you get what you pay for.   Why would you want to pinch pennies with what is at stake in a family law matter?

If you truly cannot afford a family law attorney, it may be worthwhile to look into pro bono (free) legal services that may be available to you.  There are a few things worth remembering when looking for these services:

-           Just calling private attorneys offices and asking for free or discounted rates likely isn’t going to get you free or discounted services.  It’s not that attorneys don’t want to help you, it’s that they can’t afford to!

-          Family law matters are matters of civil law.  This means you don’t have the right to an attorney.  That only applies to criminal matters.

-          Legal services agencies (agencies that receive funds from the Commonwealth to provide free legal services) can only provide services to individuals who, at the very least, meet income requirements.  In lawyer terms, you must be “indigent.”  This typically means your household’s income is equal to or less than 175% of the Federal Poverty Line.  Right now, that’s approximately $13,500/year +$4,500/year for each additional family member living in the household.

**Even if you meet this requirement, different agencies have different “priorities” for service.  These priorities are set by the Commonwealth when the agency is created.  While the agency might have discretion to accept other cases, they also have practical limits like their funding and their caseload.  Often these agencies can’t accept all cases that fall within their priorities, let alone accept ones that fall outside of them.

Anyone who’s had a matter in the Probate and Family Court in Massachusetts knows that you spend a lot of time waiting around the courthouse to be heard.  Being a Divorce Attorney, I often find myself sitting in the hallways of the courthouse waiting.  In these hours of waiting, I often hear unrepresented parties discussing their legal matters and I’ve come to realize that there are a lot of misconceptions when it comes to what the law actually is.  I’ve decided it’s time to address these myths, and bring some clarity.  I give you: Family Law Myths Exposed: Part I.

Myth: Having Joint Legal Custody means that each parent is financially responsible for half of everything the child needs.

Truth: Whether or not a parent has legal custody of a child has nothing to do with whether or not he or she has to pay support, or how much that parent will have to pay.  Legal custody dictates who gets to make major decisions for your child, like where your child will attend school.  Child Support is based on the gross incomes of both parents, and who has physical custody of the child.  Support is paid because both parents have a responsibility to contribute to their child’s financial well-being, but the court isn’t going to order a parent to pay half if he or she can’t afford that.

Further, both parents may not be responsible for all of a child’s expenses.  Child Support is about covering the necessities in a lump sum.  Things like food, clothing, rent or mortgage payments.  There are plenty of things that aren’t considered necessary expenses, or that are covered by orders separate from a Child Support order.  There may be separate provisions for healthcare expenses, or extracurricular activities.  Often times, when it comes to discretionary spending that the parents don’t agree on (for instance, one parent feels it appropriate to buy the child a brand new car and the other parent doesn’t agree), the parent who disagrees may not be responsible for any portion of the purchase.

Myth: Whether or not a parent pays Child Support determines whether or not he or she has a right to see his or her child.

Truth: The obligation to support your child and the right to spend time with your child are totally separate issues.  A parent who puts his or her child at risk may be required to pay support, even though he or she is not allowed to see the child.  Likewise, a parent who cannot pay support may have an order allowing him or her frequent visits.   In the Probate and Family Courts, judges are looking at what is in the best interest of the child.  Most of the time, this is the child having both of his or her parents in his or her life, making financial contributions at a level they can afford.

Myth: You have a right as a parent to see your child.

Truth: To a certain extent, this is true, but not the way most parents seem to think about it.  As mentioned above, the Probate and Family Court is really protecting the rights of your child; your child’s right to be safe, happy, and healthy—emotionally, mentally, and physically.  Most of the time, this interest is best served when everyone who loves your child gets to play a part in his or her life.  This is why a court will order a visitation schedule.  Not because you as a parent have a right to that time with your child, but because your child has a right to that time with you.

If you have recently become eligible for SSDI (Social Security Disability Insurance), it is likely that your minor child is also receiving a “Dependency Benefit”:  his or her own monthly benefit from the Social Security Administration (SSA).  The question is how this will affect your financial obligation in terms of child support?  In the Commonwealth of Massachusetts, it can make a big difference.

In the past I’ve discussed how to modify Child Support Orders.  In that post, I pointed out that to modify the order, the court will need to see that a significant change in material circumstances has occurred.  Becoming eligible for SSDI is exactly the type of change I was referring to.  In fact, the benefit your child receives might even completely cancel out your weekly child support payments!

Consider what a Child Support Order is really for:  to ensure that your child is financially supported.  That the support is coming in is what counts.  If the Dependency Benefit your child receives is as much or more* than the amount you should be paying under the support guidelines, there’s little reason for you to be paying additional money above and beyond that.  By bringing your SSDI benefit (and your child’s corresponding Dependency Benefit) to the attention of the court, you may be able to substantially decrease, if not eliminate entirely, your weekly obligation.

*Note that where the Dependency Benefit is greater than the amount owed under the guidelines, your child will continue to receive the full benefit, and you will not be entitled to the difference between these amounts.

Child support is always modifiable in the probate courts of Massachusetts.  The courts realize that either parent’s income will fluctuate during a child’s life and that the financial needs of children change over time.  Whether the original child support order was made pursuant to a Separation Agreement or after a trial, an order of the court, child support can be modified.

The standard used to modify child support is that there must be a significant change in circumstances.  Something significant must have happened between the last order of child support and the new order you’re trying to obtain by a Complaint for Modification.  A significant change can be a dramatic raise in the other parent’s income or them winning the lottery, a big decrease in your income, or a big increase in the child’s needs (such as an accident or injury).

A request for modification will not be approved if there isn’t a significant change.  As you are asking the court to change the child support order, you must prove to the court that there is a significant change for the court to approve an increase (or decrease) in child support.

In a novel case that’s being heard by the Court of Appeals here in Massachusetts, a woman who had 2 daughters through artificial insemination is demanding that her anonymous sperm donor’s identity be revealed so that she could establish paternity, child support and obtain medical information.  The case is on appeal from Boston, Suffolk County probate court. [article here]

Sperm banks’ list of depositors are typically sealed tighter than a Swiss bank vault (although recently, that’s not so tight either).  This is to protect the possible children of the donors and more importantly the donors themselves.  The outcome of this case could jeopardize the entire sperm donation industry and therefore the hopes of a lot of women who wish to be artificially inseminated by anonymous donors.

If the identity of this donor were ordered to be disclosed – even if he ultimately would not be ordered to pay child support – it would put a chill on anyone who would even consider being a sperm donor.  They would fear the threat of having to be dragged into family court and established to be the father.

Legally, I don’t believe the donor’s identity should be revealed.  It would break the mother’s contract with the sperm bank and it would go against public policy.  Personally, I believe this is a very selfish and desperate action by the mother.