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Questions Answered by Brian Waller
1 Answer | Asked in Federal Crimes, Family Law, Child Custody and Civil Rights for Massachusetts on
Q: Can a judge order a hair follicle test on hearsay? No drug history or evidence. Just hear say from other parent?

My child's father believes that I am using drugs. The reason is because he heard a recording of my current partner and i arguing. That he obtained from a 3rd party, illegally. Also, my partner didn't know he was being recorded. In the audio it uses a slang word for a drug, but that word... Read more »

Brian Waller
Brian Waller
answered on Apr 30, 2023

The judge can basically order anything that they deem to be in the best interests of the child. If there is a reason for them to be concerned about drug use, they can order a drug test. It doesn't really matter how they came to making that order, unfortunately. You could choose to appeal it,... Read more »

2 Answers | Asked in Family Law, Divorce and Probate for Massachusetts on
Q: In Massachusetts is there an agreement that can be filed with the courts for the termination of a domestic relationship?

My domestic partner is looking to end the relationship. We currently own a house together and share bank accounts for the past 3 years. In speaking with the mortgage company I would need a court document stating we are separating and agreeing that I would keep the house for her to be released from... Read more »

Brian Waller
Brian Waller
answered on Apr 24, 2023

You could file a Petition to Partition in the Probate and Family Court. I have never seen one filed jointly, but I don't see why you couldn't do that, or you could file it as contested then file an agreement for judgment. I believe that could also be filed in Land Court, I am pretty sure... Read more »

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1 Answer | Asked in Child Support, Family Law and Child Custody for Massachusetts on
Q: Child support in MA with out of state father.

I recently had a baby while living in MA. I filed for child support giving as much information about the father as possible. It has been a week and the application still says "submitted".

The father moved out of state and won't supply me his new address so I could only... Read more »

Brian Waller
Brian Waller
answered on Apr 4, 2023

It could take anywhere from several weeks to several months. You could call DOR-CSE and ask them about the status if you haven't heard anything in a few more days.

DOR will work with the child support agency in his state to collect the payments once the MA court issues an order for...
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2 Answers | Asked in Child Custody and Family Law for Massachusetts on
Q: Can I request a parental fitness eval for a non-custodial, wheelchair bound parent that has unsupervised visitation?

I am an unmarried single mother that has a temporary order for sole legal and physical custody of my 1 year child in MA. Child’s father lives out of state in Maryland and judge has ordered a temporary, unsupervised visitation schedule for father to come to MA every other weekend for 6 hours.... Read more »

Brian Waller
Brian Waller
answered on Mar 4, 2023

From a practical standpoint, even though he was granted visits, how often is he going to be able to travel from Maryland to Massachusetts for a 6-hour visit? You may want to wait and see how things go. Judges usually give parents the opportunity to show they can parent successfully, but if it... Read more »

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1 Answer | Asked in Family Law and Child Custody for Massachusetts on
Q: Is circumventing a court order knowing you are doing it the same as violating the order

My ex am I have an order stating neither one of us can cancel a Drs appointment made by the other, she brought him in to the Drs and got the second vaccine shot which was an appointment I made for another date, the office then canceled the appointment I made as it was obviously no longer needed, is... Read more »

Brian Waller
Brian Waller
answered on Feb 18, 2023

It is hard to say without reviewing the specific order, but a judge would probably look at your ex's intent, but also if that cancellation harmed you or the child in any way. If your ex took the child to a different scheduled appointment and the doctor offered to give your son the second... Read more »

1 Answer | Asked in Child Support for Massachusetts on
Q: My adult child is making 30k a year. I’m my divorce decree full time employment constitutes emancipation. Help

None of my support goes to kid. Wife states kid pays for stuff because she works. Then why am I still paying ???

Brian Waller
Brian Waller
answered on Jan 30, 2023

You can file a Complaint for Modification and ask that your child support be terminated by the court. If you believe it should be terminated, you should file as soon as possible because a judge can only order it to be adjusted retroactively as far back as there is a pending Complaint for... Read more »

1 Answer | Asked in Divorce for Massachusetts on
Q: Why is a divorce case "active" after 10 years?
Brian Waller
Brian Waller
answered on Dec 6, 2022

Most likely it is just an error by the registry unless there has been a recent filing. You could contact the registry for the county where the divorce occurred and ask them to close it, but probably not worth the effort as there is no consequence to the "active" designation if there is no... Read more »

1 Answer | Asked in Child Support for Massachusetts on
Q: If my child now goes to boarding school, does that effect my weekly payment?

My daughter is going to a boarding school this year. My ex wife and I have split the cost for this. I have a son who lives with my ex wife. Is my weekly payment effected by my daughter now not living with my ex wife?

Brian Waller
Brian Waller
answered on Dec 5, 2022

Unfortunately for you, probably not. If your daughter returns to your ex-wife's home for school breaks, that would still likely be considered her primary residence. You could always agree with your ex-wife to reduce the child support payment based on your daughter going to boarding school, but... Read more »

1 Answer | Asked in Family Law and Child Support for Massachusetts on
Q: How long does a judge have to sign and file a judgement after a child support hearing in Massachusetts?

My court hearing for child support was 27 days ago yet I still haven’t received the judgement in the mail, neither have the courts or DOR.

Brian Waller
Brian Waller
answered on Nov 22, 2022

It depends on the type of hearing. If it was a divorce trial where child support was just one of many issues, it would take a few (or more) months. If it was a hearing where DOR was seeking support on the other parent's behalf, it should be much quicker. It also depends on the county you are... Read more »

1 Answer | Asked in Family Law for Massachusetts on
Q: Spousal conflict on Adoption: Is Divorce the only solution?

We have been married for 15 years without kids. We tried IVF several times, but it did not work. Now my wife wants to go for adoption, but I am not interested. She is even willing to do it as a single mother. And I am opposed to it primarily because, we don’t know how things will turn out after... Read more »

Brian Waller
Brian Waller
answered on Oct 11, 2022

I am actually not sure whether your wife could adopt a child solely while you are married, but another lawyer with expertise in adoption may be able to answer that.

Regarding an agreement to waive child support, however, that is definitely not possible. The courts view child support as...
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1 Answer | Asked in Divorce for Massachusetts on
Q: How is the actual duration of marriage duration calculated?

How is the actual duration of marriage duration calculated?

Brian Waller
Brian Waller
answered on Sep 21, 2022

Unfortunately, it depends. For purposes of alimony, the duration of marriage is calculated as the date of marriage through the date of service of the Complaint for Divorce. So, if your ex-spouse filed on March 19, 2021, it would be whatever date after that you were actually served with the divorce... Read more »

1 Answer | Asked in Child Custody and Child Support for Massachusetts on
Q: Modification of child custody and child support

Can I modify child custody and support if I went from 5 overnights to 7 overnights plus taking them till 7 at night 4 other nights? And have my kids all day on Sunday while my ex is at work. Yea he only days. Don’t see them are tuesdays and every other Saturday, other then that they are with m... Read more »

Brian Waller
Brian Waller
answered on May 17, 2022

It sounds like you have a good argument for modification. If you think your ex will retaliate, just be sure you really want to kick the hornet's nest. If your kids are doing well with the current arrangement, it may be worth it to suck it up even though you feel she is taking advantage of you.... Read more »

1 Answer | Asked in Child Support for Massachusetts on
Q: I want to file for child support. Do I need a lawyer for that??

Husband left to PR and hasn't given any support to our son, since he left in 2020.

We are living w/some family and can use the help. How long does it take to file for child support? Thank you

Brian Waller
Brian Waller
answered on May 7, 2022

You would either need to file for divorce or file a Complaint for Separate Support if you do not want to file for divorce.

With either of those, you can file a motion for temporary orders, which would include child support and anything else you would want a judge to address on a temporary...
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2 Answers | Asked in Divorce for Massachusetts on
Q: How do I divorce my spouse that lives in another country?

My spouse and I have fallen out of love and we want a divorce.

Brian Waller
Brian Waller
answered on Mar 4, 2023

If your spouse agrees, you can file together and the court will (usually) schedule a Zoom hearing to enter the judgment of divorce. It can be easy if you file jointly (as a 1A divorce).

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1 Answer | Asked in Family Law for Massachusetts on
Q: How can I find out exactly what terms and powers of guardianship when guardian will not disclose?
Brian Waller
Brian Waller
answered on Mar 2, 2023

I am not a guardianship expert, but you can obtain a copy of the order appointing the guardian from the register's office in the county where the case was filed. That order/decree will detail the powers granted to the guardian.

1 Answer | Asked in Family Law and Child Support for Massachusetts on
Q: Can wife’s ex-husband just stop paying child support and decide what he’s going to pay? In MA

He said he’s going to stop paying for 21 year old who is going in to her 5th year of full time college. She still resides with us and we pay a 99% of her expenses. He said he’s going to cut child support in half because the have two children. He said he went to lawyer and because he has two new... Read more »

Brian Waller
Brian Waller
answered on Mar 2, 2022

The ex-husband can't unilaterally make changes to child support, no matter the reason. It can only be done via a court order. That court order could be the result of a written agreement by the parties to make changes or from a judge after a hearing, but the ex would be in contempt if he just... Read more »

1 Answer | Asked in Family Law and Child Support for Massachusetts on
Q: Can an unmarried mother of two children request retroactive child support when initially filing for child support?

Seeking retroactive child support back to the date the kids and I moved out. (4-5 years ago). We were never married and he is the father- on the birth certificate of both children.

This is a new child support request. We previously had a verbal agreement for weekly payments that he has not... Read more »

Brian Waller
Brian Waller
answered on Jan 11, 2022

Usually, a retroactive order can only go back as far as the date the opposing party was served with the complaint for child support. If there has never been an order previously, you may have the ability to argue for retroactive support back to the child's date of birth, but it would depend if... Read more »

2 Answers | Asked in Child Custody for Massachusetts on
Q: What can i do is the father violated court orders?

He has supervised visitation at his mother house and his mother is supposed to supervise him on all three days that he has. I texted his mother to confirm to see he was at the home for his visitation but she never text me back i got worried and i check on my daughter ipad location and she wasn’t... Read more »

Brian Waller
Brian Waller
answered on Jan 9, 2022

You should have the police do a wellness check at the grandmother's home and they would document that the child wasn't there. And/or you could also have them do a wellness check at the girlfriend's house to confirm the child is there and who is present. You should also take... Read more »

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2 Answers | Asked in Child Custody, Child Support and Family Law for Massachusetts on
Q: Do I have to provide information to my child’s father if he hasn’t been in their life for over 6years?

My child’s father has not been in their life for over 6years. During that time I have had them full time with no help from him in any way. He does not pay any child support. He does call about once a month. Recently he has been asking for their information everything from school/medical records... Read more »

Brian Waller
Brian Waller
answered on Jan 9, 2022

I would just add that if you do return to court, you should ask for child support to be ordered. Even if there is no realistic hope of him ever paying, it may be enough of a deterrent to keep him at a distance. There is no connection between custody and child support, so even if he is ordered to... Read more »

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1 Answer | Asked in Child Support for Massachusetts on
Q: Can my child support be modified if my income hasn’t changed?

My child support was modified to increase and I never received a court hearing notice nor has my income changed.

Brian Waller
Brian Waller
answered on Sep 3, 2021

You should first contact the Department of Revenue Child Support Enforcement Division and have them review your account. Sometimes if there is an arrears balance the amount changes. If you have no arrears, it is possible that the timing of the payments got off track somewhere and they needed to... Read more »

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