HELP!! Court MA Date next week - no council

[westtown8]

Massachusetts - What is the name of your state?I am a custodial parent of two girls, ages 12 and 15. In a 1997 divorce agreement. My ex-husband and I agreed on Child support of $200/week plus 50-50 split in uninsured medical and dental. His payment has been erratic since 2001 but my current husband and I have always negotiated payment plans with him and made an agreement that we would pay for the braces of the older daughter if he paid for the costs of the younger daughter.

After chronically late payments in 2004 and no payments in 2005 through May, I filed with MA DOR for Wage garnishment and an affidavit of arrears for Jan through May, in May 2005. He had consistently told us that he would get current with support byselling property that he had owned with wife #2 (he is currently with wife #3).

It turns out that at some point he transferred title to said property to wife #3. In the mean time I received an application for Civil contempt from DOR. I delayed filing the complaint while we negotiated with my exhusband until (getting no payments for the arrears) we filed the complaint so that DOR would get responsibility for collection of the arrears.

He retained an attorney and filed a response, dated 12/20/05, to 5the complaint with 2 defences:

1. Laches - plaintiff did not timelyfile this complaint and therefore should be barred from bringing it forward at this late date.

We filed the affidavit with DOR for support for 1/1/05 through 5/20/05 in May 2005. They did not get us the application for Complaint of Civil Contempt until July. We delayed filing it because we were trying to negotiate a payback plan with my exhusband until 9/1. We received the notification of a court date (1/3/05) in November.

2. Unclean hands - Basically the response claims that we refused to deal in good faith with the my exhusband while having full knowledge of the defendant's grave financial situation (a loss of 59% of his income). I have emails of us negotiating the arrears, and have had many phone conversations with him for years.
He is asking for relief of his ongoing obligation and "alleged arrears". He is also asking for legal expenses. I am trying to retain council, but because of the time of year I am having difficulty finding an appointment before my court date. He has 15 years experience in the loan origination industry and is claiming he is currently earning $25k per year (commission only/no salary) In 1997 he was making $60k.
please advise

 

[nextwife]

He has 15 years experience in the loan origination industry and is claiming he is currently earning $25k per year (commission only/no salary) In 1997 he was making $60k.[/B]
please advise

Many of my customers are mortgage originators. I have been in RE since 1979.

Yes, because of Dot Com mortgage lending competition, far lower fee & point generation, conventional mortgage originators, at least in my marke, ARE making FAR less per transaction than I saw them making in 1997. Where they may have made alot per loan bacl then, the public now shops online more, is better informed, there are FAR more players competing for a much smaller pool of business. Most loans I see have NO points, minimal closing costs and the oroiginators only get a small fee. Back in '97, they'd get a couple points on these same loans. Multiply hundreds less per loan AND fewer loans done, and you can easilly do the math.

The mortgage lending industry has REALLY changed this past decade. I've been there and seen it. On closing statements every day.

Many thrifts and bank systems also now pay commission only, whereas back then they also paid a salary. It's no longer the same as then. Many no longer get any benefits.

 

[westtown8]

Regardless...

If I had a similar reduction in salary, I would have to move my children to a different house/appt,town/ school district etc AND get another profession or go on welfare. His new family currently owns 2 homes (one of which he one time owned - now its the Mrs') (combined purchase price around $1.2 million).

 

[LdiJ]

Massachusetts - What is the name of your state?I am a custodial parent of two girls, ages 12 and 15. In a 1997 divorce agreement. My ex-husband and I agreed on Child support of $200/week plus 50-50 split in uninsured medical and dental. His payment has been erratic since 2001 but my current husband and I have always negotiated payment plans with him and made an agreement that we would pay for the braces of the older daughter if he paid for the costs of the younger daughter.

After chronically late payments in 2004 and no payments in 2005 through May, I filed with MA DOR for Wage garnishment and an affidavit of arrears for Jan through May, in May 2005. He had consistently told us that he would get current with support byselling property that he had owned with wife #2 (he is currently with wife #3).

It turns out that at some point he transferred title to said property to wife #3. In the mean time I received an application for Civil contempt from DOR. I delayed filing the complaint while we negotiated with my exhusband until (getting no payments for the arrears) we filed the complaint so that DOR would get responsibility for collection of the arrears.

He retained an attorney and filed a response, dated 12/20/05, to 5the complaint with 2 defences:

1. Laches - plaintiff did not timelyfile this complaint and therefore should be barred from bringing it forward at this late date.

We filed the affidavit with DOR for support for 1/1/05 through 5/20/05 in May 2005. They did not get us the application for Complaint of Civil Contempt until July. We delayed filing it because we were trying to negotiate a payback plan with my exhusband until 9/1. We received the notification of a court date (1/3/05) in November.

2. Unclean hands - Basically the response claims that we refused to deal in good faith with the my exhusband while having full knowledge of the defendant's grave financial situation (a loss of 59% of his income). I have emails of us negotiating the arrears, and have had many phone conversations with him for years.
He is asking for relief of his ongoing obligation and "alleged arrears". He is also asking for legal expenses. I am trying to retain council, but because of the time of year I am having difficulty finding an appointment before my court date. He has 15 years experience in the loan origination industry and is claiming he is currently earning $25k per year (commission only/no salary) In 1997 he was making $60k.
please advise

Well...the defense of laches in this case is definitely ridiculous. People go after arrearages many many years after the arrearages occur. I can't see him getting anywhere with that...its not even been a full year yet for most of the arrearages.

I can't see him getting anywhere with the unclean hands bit either...you have no obligation to negotiate child support. Child support is based on state guidelines.

However, its quite possible that he could get a reduction in ongoing child support. As Nextwife said it may be possible for him to demonstrate that his income has legitimately dropped. That won't get him off the hook for arrearages however.

If you can't get an attorney hired before the court date, then when you go to court ask the judge for a continuance to hire an attorney. The judge should allow that....particularly in light of the points your ex (or his attorney) is attempting to make.

 

[westtown8]

Nextwife,

I didn't mean to sound snippy. Remember, MA cost of living is almost 40% higher than WI. When I say $25k it means $18k in WI. High school grads ( He is a college grad with 15 work experience (salary, not commission)) can find similar comp.

I would even live with (although I think it was unfair) a reduction in current support. He made commitments (upon which I spent accordingly - Tutoring, medical, etc.) that he is currently in default of.

He has also made false (Which I can prove) statements to the court. My only issues are what legal remedies do I have, to what I consider, contempt of court. My needs are not industry data on the loan origination profession, but technical legal advice. Are his emails to me acceptable, as evidence in court?, Since I am trying to hire council based on these falsehoods, can I recoup my legal expenses from him, etc

 

[westtown8]

Legal Costs?

Thank you so much LdiJ! That is a relief. I will (if necessary) take your advice.

I was just wondering if there was a way I could recoup my legal costs from my ex husband. I was willing to defend my claim (which I felt I could easily substantiate). Then I received a legal response with a bunch of legal terms and a demand to pay the defendant's legal fees. If his arguments are as weak as you say ( I definately agree), is it possible to turn the tables and demand reimbrsement of my legal expences?

Thanks

 

[LdiJ]

Thank you so much LdiJ! That is a relief. I will (if necessary) take your advice.

I was just wondering if there was a way I could recoup my legal costs from my ex husband. I was willing to defend my claim (which I felt I could easily substantiate). Then I received a legal response with a bunch of legal terms and a demand to pay the defendant's legal fees. If his arguments are as weak as you say ( I definately agree), is it possible to turn the tables and demand reimbrsement of my legal expences?

Thanks

You should certainly ask for the same (that he pay your legal fees). It would totally be up to the judge however. In generally judges don't order one party to pay the other party's fees unless the judge feels that the motion/petition is truly frivolous.....or unless there are really serious income differentials..AND the motion is somewhat frivolous, or the party is seriously in the wrong.

The whole "laches" and "unclean hands" bit is totally frivolous....but your ex may have valid grounds for a reductions in ongoing support. I don't think he has any chance of convincing a judge to order you to pay his fees.....but you may not have much luck either.

 

[betterthanher]

If you can't get an attorney hired before the court date, then when you go to court ask the judge for a continuance to hire an attorney. The judge should allow that....particularly in light of the points your ex (or his attorney) is attempting to make.

Before "waiting until the court date" to do this, I would research your local court rules on continuances to see if you could even do this. Each court is different and you might not be able to ask for a continuance in person...especially in your case since you know you won't have council.

 

[HomeGuru]

Before "waiting until the court date" to do this, I would research your local court rules on continuances to see if you could even do this. Each court is different and you might not be able to ask for a continuance in person...especially in your case since you know you won't have council.

**A: C'mon people. You've been watching too many Survivor tribal council's.
The word is spelled counsel as in legal counsel.

 

[LdiJ]

Before "waiting until the court date" to do this, I would research your local court rules on continuances to see if you could even do this. Each court is different and you might not be able to ask for a continuance in person...especially in your case since you know you won't have council.

I don't care what state or county someone is located in. It always permissible to ask for a continuance in court.

 

[betterthanher]

The word is spelled counsel as in legal counsel.

Duh...I should know better.

 

[betterthanher]

I don't care what state or county someone is located in. It always permissible to ask for a continuance in court.

Sure, one can always ASK for a continuance, but whether it'll be granted is another story. Which is why your response is awfully irresponsible to suggest to the OP.

That is why I decided to suggest to the OP to check local court rules FIRST instead of assuming that if one asks the day of, they'll be granted one. I know there are some courts in my area, for example, that will NOT grant continuances in some situations day-of the hearing. I don't doubt there are others everywhere that are the same way.

You don't need to be a lawyer to know that, either.

Many courts ask for continuances to be request as soon as possible. Since the OP is well aware s/he will not have counsel on that date, s/he should request for a continuance until a specific date in order to find new counsel.

 

[westtown8]

Grammar corrections aside, thank you

**A: C'mon people. You've been watching too many Survivor tribal council's.
The word is spelled counsel as in legal counsel.

Home Guru - I don't watch Survivor but I also don't use an " 's" to make nouns plural. If you forgive me for choosing an incorrect homonym, I will forgive you.

On the court notice it states that a continuance must be requested in person, so I think I am ok on that point.

Thank you all for your advice.

 

[LdiJ]

Sure, one can always ASK for a continuance, but whether it'll be granted is another story. Which is why your response is awfully irresponsible to suggest to the OP.

That is why I decided to suggest to the OP to check local court rules FIRST instead of assuming that if one asks the day of, they'll be granted one. I know there are some courts in my area, for example, that will NOT grant continuances in some situations day-of the hearing. I don't doubt there are others everywhere that are the same way.

You don't need to be a lawyer to know that, either.

Many courts ask for continuances to be request as soon as possible. Since the OP is well aware s/he will not have counsel on that date, s/he should request for a continuance until a specific date in order to find new counsel.

A judge is almost always obligated to honor the first request for a continuance, particularly if the continuance is so that legal counsel can be hired. If the judge proceeds with the case without allowing a continuance for legal counsel to be hired, then the judge would have made the case highly appealable.

Its when there have been multiple requests for continuances that judges have a valid basis to deny the request.