Can I go to Jail for not paying Child Support?

Under M.G.L. c. 215 s 34, a Judge can incarcerate a Defendant who has failed to pay under a Court Order that was clear and unambiguous, so long as the Defendant had the ability to pay. Many Contempt Complaints in the past few years for issues of non-payment have been due to the down-turn in the economy. The key issue in many of those cases is whether or not the Defendant had the ability to pay.

It can be difficult, though, for the Court to distinguish between a party who is a victim of circumstance and truly unable to pay, and the lazy or vindictive ex who is just not trying to pay their fair share. In 2009, Judges in Massachusetts incarcerated 848 defendants for Contempt. In 2010, the number dropped to 622. That drop may be due to a perception that the economy is affecting more Defendants, but it's difficult to know for sure.

Regardless, you don't want to be among those counted in 2011 (nor do we want any of our clients to add to that number). In these cases the credibility of the Defendant is very important as is any evidence they can present to show a legitimate reason that they were unable to pay. In addition, if the Order is still in effect, the Defendant should likely file a Complaint for Modification to ask the Court to make a change so they will not continue to be in Contempt going forward. If you are not sure about how to proceed on this type of matter, we strongly recommend consulting with an attorney before it's too late.

What is a Complaint for Modification?

A Complaint for Modification is the action by which you can request that the Court make a change to past Court Judgments. If the Orders that you want changed are only Temporary Orders then you must request a change by Motion.

A Complaint for Modification is the beginning of a new action and should only be used to change permanent orders which are called Judgments. To succeed on a Complaint for Modification you must prove two things: first you must prove that there has been a "significant material change in circumstances;" and second you must prove that the change in circumstances warrants a change in the Court's Order.

A "significant material change in circumstances" is a change in your life that is big enough to have an effect on the factors that related to the original Order of the Court. For example, if the Order that you want to change is a Child Support Order, then you must demonstrate that there has been a change to the factors that affect a Child Support determination, such as the income of the parties, expenses of the parties or needs of the children. In addition, you must demonstrate that that change is significant. In Child Support cases a good rule of thumb for determining significance is whether or not the change in circumstances would result in a 20% change in the Child Support Order.