Guidelines on Abuse Prevention Proceedings: Navigating Rough Seas by Rebecca Cazabon

Practice Tips 

Sure to stir a wide range of emotions, restraining orders have become ubiquitous in our society.  Practitioners in the criminal law and domestic relations law arenas, as well as others, encounter restraining orders on a frequent basis.  For this reason, lawyers should become familiar with the particulars of Chapter 209A law, and resources available to help navigate what can appear to be a confusing process.  One such resource is the Guidelines for Judicial Practice: Abuse Prevention Proceedings.  Promulgated by the Office of the Trial Court in 1996, and later revised in 1997, 2000, and most recently in 2011, the Guidelines are an essential tool for anyone handling a 209A matter.

Enacted in 1978, the Abuse Prevention Act, M.G.L. Chapter 209A provides a statutory mechanism for those suffering from domestic abuse to seek legal recourse to stop and prevent abuse from occurring in the future.  Court orders available under c. 209A include, instructing the defendant to stop abusing or threatening to abuse the plaintiff, forcing the defendant to stop contacting the plaintiff, requiring the defendant to leave and stay away from the plaintiff’s household and workplace, granting temporary custody of a minor child/ren to the plaintiff, and directing the defendant to pay temporary support to the plaintiff or the minor child/ren of the relationship.  While 209A proceedings are civil in nature, a violation of a 209A order is a criminal offense.

To be eligible for a 209A order, a victim must show an intimate or familial relationship with the defendant, including marriage, substantive dating, cohabitation, relation by blood or marriage, or having a child together.  Victims who never knew their perpetrators, or knew them only marginally, such as many survivors of sexual assault, rape, and stalking, are ineligible to file for a 209A order.  To provide these and other victims with legal recourse, in 2010, the legislature enacted an Act Relative to Harassment Prevention Orders, M.G.L. 258E.  To be eligible for 258E relief, the plaintiff must prove the defendant committed at least three acts of willful and malicious conduct against the plaintiff, with the intent to cause fear, intimidation, abuse or damage to property, and that said conduct did in fact cause fear, intimidation, abuse or damage to property; or the defendant committed any act by force, threat or duress, that caused the plaintiff to engage in sexual relations; or the defendant committed a violation of a list of enumerated crimes.  The Supreme Judicial Courtrecently held that appeals from 258E decisions are appealed to the Massachusetts Appeals Court (as are 209A appeals).  O’Brien v. Borowski, 461Mass. 415 (2012).

The Guidelines for Judicial Practice: Abuse Prevention Proceedings were issued to help judges and court personnel sensitively and objectively address the broad range of complex issues that arise under c. 209A.  Intended to promote the safety of applicants, while ensuring the due process rights of defendants, the Guidelines provide uniformity and a coordinated response by the trial courts to domestic violence.  It is important to note that the Guidelines apply only to 209A proceedings, and are not an amendment to the existing statute.

The Guidelines provide a detailed and expansive analysis of the legal requirements under 209A, recommended interpretations of the law, and best practices for 209A policy and procedure, particularly in areas where the law is vague or silent.  See Guidelines for Judicial Practice: Abuse Prevention Proceedings 1:00 commentary (September 2011).  Given the sensitive nature of the issues involved, and the high level of tension that is often present, lawyers can benefit from thoughtful and practical guidance on how to represent clients in these cases.

The fourth edition of the Guidelines was compiled and implemented by the Trial Court, with significant assistance from the Boston Municipal Court, District Court, Probate and Family Court, and Superior Court Departments.  The revisions reflect several major substantive and procedural changes in 209A practice.  The revised Guidelines can be found on the Trial Court website, http://www.mass.gov/courts/formsandguidelines/domestic/index.html.  Links to other documents, such as Highlights of September 2011 Revisions to Guidelines, and documents referenced in the Guidelines, including the newly revised c. 209A forms, which went into effect in January, 2012, can also be found on the Trial Court website.

The 2011 revisions to the Guidelines can be divided into three categories:  changes based on appellate case law decided between December, 2000, when the Guidelines were previously revised, and September, 2011, when they were most recently revised; changes based on statutory amendments and new statutory law; and changes based on the Trial Court’s desire to clarify and improve court policies and procedures covering 209A proceedings.  Brief descriptions of the most significant revisions to the Guidelines can be found in the Highlights on the Trial Court website.  Certain revisions, however, deserve special mention.

To begin with, the Guidelines have been revised to reflect that a court does not need personal jurisdiction over a defendant to issue a 209A order, except that it may not impose any affirmative obligations on a non-resident defendant, like ordering to pay child support or to surrender firearms.  Additionally, in light of the rise of social media over the last decade, the Guidelines provide that a 209A order prohibiting contact can be violated through e-mail, texts, Facebook, and Twitter.  The Guidelines now arm practitioners with helpful analysis based on key appellate law governing what a plaintiff must show in order to support a finding of risk of abuse to warrant an extension of a 209A order.  These factors include, ongoing custody or other litigation that engenders hostility, the parties’ demeanor in court, and the likelihood that the parties will encounter each other in their usual activities.  In addition, the revised Guidelines reflect recent case law supporting the holding that the fact that abuse has not occurred during the pendency of a 209A order does not in itself constitute sufficient grounds for allowing an order to be vacated.  In situations where the parties reverse roles in two different courts, and obtain 209A orders against one another, the revised Guidelines dictate that they be treated as mutual orders, which require specific written findings of fact, and should be issued only sparingly.

Further revisions that warrant special attention are those that are based on the Trial Court’s desire to clarify and improve court policies and procedures.  For example, the revised Guidelines now specify that a plaintiff should be informed that a defendant will have access to the affidavit supporting the 209A request.  The revised Guidelines also clarify that discovery orders are within the court’s discretion, but should be issued only upon a showing that such discovery is necessary to provide specific essential information, removing the presumption that discovery is not allowed in 209A cases except in extraordinary circumstances.  In addition, the Guidelines reinforce that 209A cases are public hearings and as such should not be conducted at side bar. The revised Guidelines specify that a 209A order must be immediately transmitted by the court to police as promptly as possible, either by faxing it to the appropriate department or arranging for the police to retrieve the order from the courthouse.  Orders that have expired or have been terminated by a judge are now referred to as “terminated” instead of “vacated”.  Finally, the Guidelines recommend that the clerk’s office request photo identification from a plaintiff wishing to terminate an order.

While the Guidelines lack the force of law of a legislative statute, and are not legally binding on the courts, they do provide persuasive judicial interpretations of statutes, case law and court procedure.  The Courts regularly apply the Guidelines to support their interpretation of domestic violence law.  For example, in support of its assertion of the minimum standards of fairness that must be observed in abuse prevention proceedings, and addressing specifically that a judge is prohibited from cutting short an abuse prevention hearing because of her belief that it should move to another forum, the Appeals Court recently cited to the Guidelines, “If the court in which a person initially seeks protection under c. 209A has jurisdiction, the person should be heard as soon as possible in that court, and should not be sent to another court”.  Guidelines for Judicial Practice: Abuse Prevention Proceedings § 1:01.”  S.T. v. E.M., 80 Mass.App.Ct. 423, 953 (2011).

As another example, the Supreme Judicial Court used the Guidelines to reinforce its holding that a trial court committed an error of law in ignoring the four factors contained in c. 209A that should be considered in deciding whether the parties are engaged in a “substantive dating relationship”, instead improperly relying on non-statutory factors, including, the existence of a pending criminal case, and the young age of the alleged victim.  “[T]he issue of family violence has become the focus of legitimate and increasing public concern.  However, that concern must not be permitted to affect or diminish the court’s responsibility to remain neutral, to protect the rights of the accused in each case, and to address each case individually on its own merits.” Judicial Guidelines § 1:02 commentary.”  C.O. v. M.M., 442 Mass 648 (2004).

As the Trial Court acknowledges, “[t]he Abuse Prevention Act . . . is one of the most sensitive and potentially volatile areas of Trial Court jurisdiction.”  Guidelines for Judicial Practice: Abuse Prevention Proceedings, §1:00 commentary (September 2011).  Fortunately, practitioners can look to the Guidelines for comprehensive guidance on handling the myriad of complex and emotionally charged issues that arise in any given 209A case.

Rebecca Cazabon is the Pro Bono Managing Attorney at Foley Hoag LLP, where she has specialized in domestic violence and sexual assault law for the past twelve years.

Tips for Handling Cases Under the New Alimony Law by Fern L. Frolin

Practice Tips

On March 1, 2012, An Act Reforming Alimony, M.G.L. c. 208, §§48 – 55, became law in the Commonwealth. The new law changes the structure and rules of judicially ordered support payments between former spouses. The statute establishes different types of alimony, provides criteria for courts to consider in deciding alimony cases, and encourages end dates for most alimony orders.

Alimony in Massachusetts was historically based on the recipient’s need and the payor’s ability to pay at the time of the order. Because most recipients’ future needs and most payors’ future ability to pay are speculative, nearly all orders had open-ended duration. Thus the notion evolved that alimony is usually a life-time arrangement, changeable only after circumstances requiring modification had already occurred. If a recipient increased income or conscientiously saved, he or she risked termination or reduction of alimony. If the payor suffered involuntary financial reversal, the recipient’s alimony could be abruptly terminated or reduced, despite ongoing need. The scheme encouraged dependency, left recipients vulnerable to unplanned events, and left payors with no ability to foresee when alimony obligations would end.

Against this backdrop, and public pressure for change, the legislature passed the new law. The  alimony law retains “need and ability to pay” concepts and permits judicial discretion in most instances, but it expands the narrow restrictions of present need and ability to pay, adding reasonable forward-looking presumptions.  It also allows different forms of alimony for different circumstances.  Mastery of the new law will require study, practice, and development of a lucid body of interpretive appellate law.  In the meantime, the following tips may aid practitioners.

1. UNDERTSTAND EACH TYPE OF ALIMONY AND DETERMINE WHICH IS BEST FOR YOUR CLIENT.

General term alimony is granted to a spouse who is economically dependent. It will usually follow a mid to long term marriage. Except for judgments that the parties agreed were non-modifiable, orders entered before March 2012 are deemed general term orders. General term alimony terminates when either party dies; when the payor reaches “full retirement age” (as defined in the statute); on the recipient’s remarriage; on a date fixed by court order; or perhaps if the recipient maintains a common household with a third party. The order is modifiable unless the parties agree otherwise.

Presumptive duration depends on the length of the marriage. After a marriage of twenty years or longer, alimony presumptively ends when the payor reaches full retirement age. The new statute measures marriage length for alimony purposes from the date of marriage to the date of service of the complaint for divorce. Some practitioners question whether the date of service rule will cause payors to rush to serve a complaint in order to establish a marriage length cut-off.  Lawyers should advise their clients of presumptive limits but also recognize that judicial discretion may override the statutory presumptions. For example, the court may consider a significant period of premarital cohabitation or a significant marital separation in determining the length of the marriage.

Rehabilitative alimony is granted to a spouse who is expected to be self-sufficient by a predicted time. It is available after any length marriage and is payable for up to five years. It is also available after child support ends. It terminates at a set date, recipient’s remarriage, or on death of either party. It is modifiable in amount. It may be extended for compelling reasons if unforeseen events prevent the recipient from becoming self-supporting and the payor can continue to pay without “undue burden.” Because rehabilitative alimony may last longer than the presumptive limit on general term alimony for marriages of five years or less, this may be the most advantageous form for a recipient after a short marriage.

Reimbursement alimony is compensation for the recipient’s contribution to the payor’s financial resources. It is only available if the marriage was five years or less. It is not modifiable, and it is not subject to presumptive durational limits. Reimbursement alimony ends only on the death of either party or a date certain, so it may be a good choice for a recipient who plans to remarry or live with a new partner.

Income guidelines do not apply to reimbursement alimony. Therefore, reimbursement alimony may be optimal for a recipient who contributed substantially to the payor’s future where the investment has not yet paid off – for example, when one spouse put the other spouse through graduate school.

Transitional alimony is granted to transition a recipient to a new location or an adjusted lifestyle after a marriage of five years or less. It terminates at a date certain or the death of either party, is not modifiable or extendable, and is available for up to three years. It may not be replaced with a different form of alimony.

1. CONSIDER DEVIATING FROM THE PRESUMPTIVE TERMINATION DATE WHEN THE ORDER IS FIRST ESTABLISHED. Under the new statute, all alimony orders presumptively terminate when the payor reaches full retirement age, if not sooner. The statute adopts the United States Social Security Act designation of full retirement age, which means that the age varies depending on the payor’s birth date.  Further, when the order originates, the court (or the parties by agreement) may set a different alimony termination date for good cause shown. Deviations in initial orders require only written findings of the reasons. Agreements to deviate should state the reasons. Requests for the court to deviate should include proposed findings.

Extension of an established termination date will be difficult to secure. An extension requires a material change of circumstances that occurred after the order was entered, and clear and convincing evidence of reasons for the extension. Practitioners should determine at the outset whether facts warrant an order that is longer than the presumptive duration. Advise recipient clients that they will face a heightened burden of proof if they need to extend the order.

1. CREATE A CHECKLIST OF REASONS TO DEVIATE FROM THE PRESUMPTIONS. The non-exhaustive statutory list includes: parties’ advanced age; medical concerns; sources and amounts of income, including investment income from assets that were not allocated in the divorce; tax considerations; a party’s inability to provide self-support because of the payor’s abusive conduct; a party’s lack of employment opportunity; and orders that one party maintain medical insurance or life insurance. (The latter factor directly conflicts with a provision of the equitable division statute, G.L.c. 208, §34, but the legislature is expected to remedy the conflict soon.) Because the statute presumes that alimony ends at the payor’s retirement age, lawyers should also consider the client’s expected retirement resources, especially if the parties will not be similarly situated after a long term marriage.

Divorce lawyers may want to maintain a checklist of deviation reasons and expand the list as new appellate decisions develop.

1. “COMMON HOUSEHOLD” IS A QUESTION OF FACT. The new statute permits alimony modification, suspension or termination if a general term alimony recipient cohabitates with another person in a common household for at least three continuous months.  A finding of “common household” requires a factual determination that the recipient and the third party reside together as a “couple.” Indicia include reputation as a couple, economic interdependence and other factors.  Not expressly mentioned in the statute, but facts that practitioners may want to research, include: family memberships, joint bank accounts, and joint ownership of real estate. Look also for “couple” and “status” postings on social network media.

Conclusion: Watch for appellate interpretations of key new statutory provisions. For example, where recipients’ “need” remains the basis for alimony, does the new presumptive maximum order amount now trump “need”? In the meantime, the message of the new law is that each party should plan financially. The new law requires us to think about spousal support in terms of the client’s future needs, resources and lifestyle.

Fern Frolin practices family law at Grindle Robinson Goodhue & Frolin. She served on the joint judiciary committee task force that drafted the Alimony Reform Act of 2011.