Q. My ex took me back to court to modify our parenting plan only a year after our divorce trial. He never responded to discovery requests during the divorce, and he never got in trouble for failing to follow the rules. I sent document requests again. He again ignored them. Is there anything I can do differently this time without wasting a ton of money trying to compel him to produce information?

A. In a divorce, you cannot start issuing subpoenas for documents until you have exchanged self-disclosure documents under Supplemental Probate Court Rule 410. A modification is different – you do not need to wait to issue subpoenas. So, if there are documents you need, don’t waste the time asking him to produce, go right to the source for documents.

Get any medical or school records directly from the sources as they may support the fact that your children are doing well with the current plan and there is no need for a change.

You should ask him interrogatories if you have not yet done that. Ask a question looking for the details supporting each allegation he raised in his modification complaint. History promotes confidence he will not respond to your interrogatories. He has 30 days to respond so at about day 45, start the paper trail of asking when you can expect his answers. Once his answers are two months late, tell him you want to have a Rule 26(g) conference which is a prerequisite to filing a motion to compel discovery.

When he misses any agreed upon deadline reached during the conference or fails to engage in the requisite conference altogether, file a motion to compel his answers and your statement certifying your efforts to have the conference or if you did have one, stating the nature of what happened during it.

Present your motion to compel to the judge and ask that he be ordered to pay your fees as a sanction. In my experience, you often do not get sanctions on the first motion to compel. If he pushed this to trial before, he is likely to do so again. So, once you have your trial date, file a motion in limine asking the judge to prevent him from offering any evidence supporting the allegations in his complaint for modification as a sanction for failing to answer your interrogatories. If the judge allows that motion and they should, he has just lost his case.

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Q. I messed up a year ago and passed out drunk while my wife was out and I was taking care of our 2-year-old. He was fine but she lost all trust in me. I spent the last year getting sober. I’ve held a job, stayed sober and went by to spend time with her and our son whenever she allowed. Despite my efforts she told me last week that she is not interested in taking me back.

I understand but I don’t want to lose our son in this process. She has refused to let me spend any time alone with him since that night. She works for the court and keeps telling me that no judge is going to let me spend time with our son until he is 12 unless she is present so I shouldn’t even bother fighting her on this. Is she right? Is there anything I can do now that I’m not already doing to win back some trust?

A. First of all, she is not right. The fact that you are now sober and doing the hard work to improve your life and your health is important and won’t go unnoticed. That being said, it is hard to prove a negative when she goes in and tells the judge all of the terrible things that happened when you were drinking. But there are ways to do it.

You should find a substance abuse monitoring company and start a routine of having yourself monitored with random urine tests and/or soberlink breath tests several times each day. One company I’ve had clients use is Paymer Associates. They can send you for random urine screens and/or hair tests and can monitor soberlink breath tests. If you have a few months of data in hand showing your sobriety, this presents an entirely different picture for a judge. I recommend you not tell your wife you are doing this.

Then, when a divorce complaint is filed you can ask for a temporary parenting plan with confidence going before a judge with your data. Admit what happened in the past and tell the judge that you have been proactive to turn things around so that you can be the father your son deserves. Then show the judge your clean testing data. It is highly unlikely your wife will persuade a judge not to allow parenting time.

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Q. I live in Sweden and my husband lives in Boston. Our daughter was born when we lived in Chicago but then he moved to Boston and I moved back home to Sweden when we broke up. Our daughter has dual citizenship. I would prefer to get divorced in Massachusetts because I will get more child support. My husband would prefer to get divorced in Sweden because he will pay less. He cannot file in Sweden because he is not a citizen. Can I file in Massachusetts even if I am not a citizen?

A. The issue is not that you are not a citizen but that you never lived together as husband and wife in Massachusetts. The way the law works, in order for you to file here, you would have to live here for a year or have lived here together as husband and wife with at least one of you still living here. The other exception is if one of you was living here and your marriage became irretrievably broken in Massachusetts – then the one-year residency requirement is not applicable. So, if you want the divorce, you will need to file in Sweden or else convince him to file in Massachusetts – if he files here, you can consent to jurisdiction.

Even if you convince him that he should file for divorce in Massachusetts, we can only divide assets and make a determination of alimony. We cannot adjudicate child custody because your child isn’t here, nor was she born here. So, the case would have to be split for purposes of child custody.

My suggestion, find a mediator either in Massachusetts or Sweden who can help you make compromises to file agreements in both jurisdictions. If you agree on a parenting plan and a child support amount you can, in theory, file that agreement both in Massachusetts and Sweden (under Massachusetts law it would need to be filed in Sweden first and registered here as a foreign judgment). If you can agree on the hard stuff, the actual divorce and where to do it should be easy.

Just remember, if you make parenting time hard for him as a way to get him to agree to other things – he has a remedy. He can file for access (i.e. parenting time) to your daughter under the Hague Convention on Civil Aspects of International Child Abduction. That same treaty that provides for return of kidnapped children, provides for parenting time for a left behind parent.

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Q. I filed for divorce and my husband filed an answer and counterclaim alleging that I had an affair and that I was cruel and abusive to him throughout our 13-year-marriage. He doesn’t want a divorce. He has been living comfortably off my salary with no incentive to go to back to work since taking a sabbatical which turned permanent five years ago.

Initially I was supportive and suggested a career change for him but that conversation got old and the only thing he is interested in doing is going to the gym (I pay for his membership) and watching James Bond movies. I had hoped by filing he would get off the couch and fight for me. Instead it seems he is fighting for my wallet.

Will he get more money because he says I was abusive or claims I had an affair (I didn’t by the way)? I don’t understand why he would be saying these things unless there was a financial gain to him.

A. It is hard to know why some people feel the need to allege fault grounds in a divorce, especially when none truly exists.

For the most part, counterclaims end up getting dismissed in the end when agreements are reached on the underlying complaint. A very low percentage of cases go to trial. If he chooses to push for trial, he could try to prove that you had an affair and/or that you were emotionally abusive during the marriage but it is unlikely to get him more money.

There is a long list of factors Massachusetts law requires judges to consider when determining how to divide property. One of those factors is conduct of the parties and conduct does not just mean bad behavior – it also means good behavior. In other words, even if he felt that your efforts to get him to get off the sofa were cruel, I’m sure he would concede that your getting up every day, going to work, paying the bills, etc. was good conduct. I would imagine a judge finding that his failure to get off the couch for more than a trip to the gym is not so good conduct.

While I do not know what he earned before his sabbatical became permanent, it sounds like you have an argument for rehabilitative alimony rather than general term alimony. This means you would pay alimony for a limited period sufficient for him to get a job and be self-supporting.

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Q. My ex-husband stopped paying alimony. I know you previously wrote about how to file a complaint for contempt. However, my ex left the country. So, what happens when your ex establishes residency in another country? Do I have any recourse or does he just get to stop paying without consequence?

A. He does not just get away without consequences but the enforcement and collection process just became more complicated. In large part the answer depends on where he went. Some countries have bi-lateral treaties with the US. So, for example, if he went to the UK, you would contact a family law attorney there, provide them with a certified copy of the judgment requiring your ex to pay alimony and ask for registration and enforcement.

If he has gone to a more remote location or a country whose laws are significantly different from ours, you will have more difficulty getting any traction. But, even then all is not lost.

You should still file a complaint for contempt here. If he has gone to a country which is a signatory to the Hague Convention on civil service abroad, you can serve him with the contempt summons and it is up to him if he appears or not. If you cannot easily serve him, file a motion asking the court to allow you to serve him via DHL, email, Whatsapp and/or even social media direct messaging. At the contempt hearing ask for a judgment of contempt even if he fails to appear so that you can go after his assets. If you can prove he has assets here such as real estate, if he does not pay the judgment within a reasonable time, you can get the court to order an attachment on his assets. Then, if he still does not pay, you can get an order to sell and deduct what he owes you from the sale proceeds.

If your ex is still employed by a company with offices in the US, you can ask the court to order his wages be garnished and you can serve orders on the US branch of the company.

If he has historically received tax refunds, you can also try to get an order to garnish any tax refund he may receive – especially on the state tax refund side. Be sure to ask for legal fees and interest every time you appear before a judge.

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Q. My 16-year-old daughter, Molly, visits her father every other weekend. He is re-married. His wife has a 4 year old son, Josh, and they recently had a new baby. They have started asking Molly to babysit Josh every day after school, picking Josh up from preschool on her way. She loves Josh and the extra cash. Recently Molly has been telling me that sh is not allowed to see or hold the baby, is required to wear a mask in the house and she and Josh are restricted to the basement. Molly was told she has to take a COVID test every day before entering the house and administer one to Josh after school before he enters the house.

Molly keeps asking me if this is normal and how to respond to these bizarre requests. I suggested she talk with her father which resulted in an escalated verbal confrontation between him and his wife in front of Molly and Josh. I tried to talk with him and he shared our conversation with his wife who told my daughter if she doesn’t like their rules she is no longer welcome in their home. What options does my daughter have?

A. This is a tough one because it sounds like one of two things is going on – either the baby has some serious health issues which are not being shared with your daughter or her stepmother is having a mental health crisis of some sort.

If Molly decides to stop going to her father’s house in these conditions, she is old enough to do so and if he were to file a complaint for contempt against you for failing to “make” her comply with the parenting plan, his action would do nothing more than alienate her. If she were a few years younger you would need court intervention to address her desire not to go.

If she wants to keep going for Josh’s sake, suggest she can go out with just her dad at some point and ask him point blank if the baby is sick and that is the reason for the precautions. If dad says no, then she can shift and say in that case she is very concerned for his wife because the behavior is so paranoid. If Molly doesn’t feel she can have this conversation with her dad, you can try.

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Q. My husband and I have been married for 19 years. We don’t have any children and since COVID he has been drinking way too much. Last year I noticed the shift in our relationship and I have mentioned to him a few times that his drinking bothers me. In January I started looking at apartments and found one where I can take one of our cats. I told him last week I was thinking of renting one and moving out. I cannot believe how surprised and sad he was. I thought this would be easy Can he stop me from using our joint account to pay for an apartment? Can he prevent the divorce from happening?

A. Short answer is no, he cannot do either of those things but maybe you need to pause for a moment. Nineteen years is a very long marriage to discard. From his reaction and from what you have said, it sounds like the tough conversations have not happened let alone any work on making improvements. Start with communication before you throw away the last two decades of your life.

Try a good marriage counselor or trusted clergy. You can always get divorced but you cannot always save the marriage.

If you have already moved on in your head which is how it sounds, you need to proceed with grace. Recognize you are a year ahead of him in this process. You moved on to how to divide things and decided you will be the one to vacate your home and which cat you will take. This is completely unfair to him. He doesn’t even know the conversation about a possible break up happened let alone had the opportunity voice an opinion about whether he wants to stay in the home or which cat he prefers to keep.

While he cannot stop the process from happening if you are inclined to push forward, he can cause it to drag out longer. There are two types of people who seek initial divorce consults – those like yourself who have made the decision and moved on mentally and those like your husband who walk into my office looking like they just got run over by a bus that they never saw coming. They are shocked, devastated and paralyzed. They cannot make decisions and need time to navigate the road ahead.

Email questions to whickey@brickjones.com

Q. My wife and I finally have a divorce agreement and have a hearing coming up. My lawyer has repeatedly told me that I have to say that I believe the agreement is fair and I believe my wife’s financial statement is accurate. The problem is, I don’t agree that her financial statement is accurate and neither does my lawyer. We have pointed out all of the problems with her financial statement in the past, gotten documents produced on the accounts she leaves off and shown why her expenses are wrong. Our agreement reflects the real numbers and all the accounts but I don’t want to lie under oath and I don’t think it is right for my lawyer to tell me to just ignore the wrong financial statement because the agreement is right. What should I do?

A. First, your instinct not to lie under oath is the correct one and your lawyer ought not to be telling you otherwise. If there is time before the hearing, your lawyer should contact your wife’s lawyer and list out all of the known problems with the financial statement. This is especially true if she just re-signed an old inaccurate financial statement. If your lawyer’s note does not get results, you can also send an email to your wife and bring a copy to court. Bottom line, your wife should file a corrected financial statement before the hearing.

If the day of the hearing arrives and no corrected financial statement has been filed, you should tell your wife that you will not lie under oath and she needs to fix her financial statement before you can tell the judge that you believe she has filed an honest financial statement. Your wife can make hand corrections in the hallway and file a corrected financial statement with the court before the hearing.

If they refuse to make the edits, this will lead to an awkward and uncomfortable hearing but you need to be prepared to tell the judge your concerns with her financial statement. The judge may allow her to make the corrections at that time but may order everyone to come back another day once she has fixed the issues. If that happens, don’t be afraid to ask for fees for your wife’s decision to waste everyone’s time.

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Q. My wife and I are approaching our 10 year anniversary.  The marriage has been bad for the last two years – mostly fighting about money because she refuses to go back to work now that both our son is in school.  She used to have a very good job earning the same as me and we can’t afford to have her continue to stay home.  I filed for divorce shortly after Thanksgiving and have been trying to have her served since the week before Christmas.  The process server has been to the house four times and she is home but refuses to answer the door.  I know I have to have her served before our anniversary or I risk having to pay alimony for a longer time.  I suspect that is the game she is playing.

What can I do to stop the game play?

A. I assume you are no longer living together but still have access to the house.  There is no reason you can’t go with the constable, open the door for him/her and facilitate service.

If you reject that idea, you should search your bank and credit card statements for the names of any lawyers she may be consulting.  If you find one, give a call and ask if they are representing your wife and if so would they help arrange for her to accept service as it appears she is ducking the constable.  This makes a record of your ongoing attempts to effect service.

If you don’t find a lawyer or the lawyer will not cooperate, file a motion with the court asking for permission to serve her by alternate means including but not limited to Federal Express, First Class Mail, email, text, and/or social media direct messaging.  I’ve seen judges allow many combinations of the above.  In that same motion, ask the court to deem her to have been served as of one of the dates the constable went to her house, documented her car being in the driveway but her failing to answer the door.  File an affidavit of the constable in support of your motion detailing his/her efforts to effectuate service stating the dates and times and attaching any photos of the car in the driveway.  In this way you can convey to the judge that she is ducking service in an effort to try to elongate the alimony duration should alimony be awarded at some point.

Email questions to whickey@brickjones.com