The many issues that must be resolved when children are involved in a divorce - parenting plans, custody determinations, parental fitness and child support - must be resolved with a child's best interests in mind. Both parents have powerful and often competing interests at play as well, but under Massachusetts family law the court must consider the effect of any negotiated solution on the children's future.
Every spouse understands how helpful legal counsel can be when such important matters receive legal recognition. A divorce lawyer advises clients about not only his or her legal rights, but also provides insights about the future financial implications of an independent life.
The U.S. Supreme Court recently reviewed an important issue regarding an individual's right to counsel in the aftermath of divorce proceedings. In Turner v. Rogers, a divided court held that a person who cannot afford counsel is not entitled to court-appointed representation in civil contempt proceedings for failing to pay child support .
An Individual's Rights to Counsel and Due Process
Most Americans are familiar with a criminal defendant's right to an attorney when accused of a felony and facing the possibility of incarceration. That principal was established in the 1963 case Gideon v. Wainwright, which recognized a person's right to counsel in criminal proceedings based on the Sixth Amendment to the U.S. Constitution.
The Turner case involved a South Carolina man who was required to pay just over $50 per week in child support and repeatedly failed to do so. In the course of multiple civil contempt proceedings, he was sentenced four separate times to 90 days in the county jail before paying arrears. After serving a six-month sentence for a fifth finding of contempt, he had accumulated nearly $6,000 in arrears on unpaid child support obligations.
Mr. Turner was not represented by an attorney at the sixth hearing, and he was found again to be in willful contempt of the child support order. Even though the judge's order contained no findings or indications regarding his ability to pay child support, Turner was sentenced to a year in prison.
Upon his release, he was again ordered to show cause for his failure to pay support and found in contempt without findings on his ability to pay. Represented by a pro bono attorney from an indigent defense organization, Turner appealed the trial court's contempt order and asserted that he had a constitutional right under the Fourteenth Amendment's Due Process Clause to appointed counsel if there was a chance that he could be incarcerated for further failure to pay child support.
The U.S. Supreme Court upheld the South Carolina Supreme Court's ruling that no right to counsel in civil proceedings existed. However, the court also held that states must implement procedural safeguards to determine whether a parent is actually able to comply with support orders. (Notably, the four dissenting judges all agreed that the right to counsel did not exist, but disagreed with the procedural safeguard requirement.) The court therefore concluded that "Turner's incarceration violated due process because he received neither counsel nor the benefit of alternative procedures like those the Court describes."
Failure to Pay Child Support in Massachusetts
In Massachusetts, an individual can be held in contempt of a divorce order for failing to pay child or spousal support, hiding financial information or lying during divorce proceedings, or failing to cooperate with a parenting plan or visitation schedule. The consequences of contempt are serious, and sound legal advice is crucial if an ex-spouse wants to avoid harsh sanctions such as driver's license suspension, garnishment of wages and other assets, or incarceration.
Multiple contempt findings can double or triple the consequences. In other words, a demonstrated failure to pay both child support and alimony in defiance of a court order would be subject to two separate sentences. This is no time for simple excuses and stonewalling - aggressive advocacy and clear advice from a Massachusetts divorce attorney are a key part of responding to charges of a failure to pay court-ordered child support.
One key point made by the Supreme Court in Turner was that providing representation to only one side in a civil dispute would be unfair to the other party if he or she does not have counsel. Based on that same reasoning, an ex-spouse who is fed up with a former spouse's failure to pay support or heed court-ordered visitation orders should also consult with a child support lawyer to fight aggressively for interests that could otherwise be overlooked.
