Chapter 12. How to do a Probate and Family Court Case

1. What do you do to get a case going in Probate and Family Court? What pieces of paper do you have to fill out and file?

All cases in Probate and Family Court have a similar "procedure." That is, there are rules on how to do things that apply to every case filed in court. These rules can be found in a book called the Massachusetts Rules of Court. Unfortunately the Massachusetts Rules of Court are hard to read and harder to understand. This chapter will try to explain in clear language some of the standard Probate and Family Court "procedures."

2. What do I do first?

Filling out all the paperwork to file a case is the first step. If you go to Probate and Family Court, you can ask at the clerks’ office for the paperwork you need to fill out for the type of case you want to file. "Filing your case" is the next step. This flow chart takes you through many of the other steps of a case. Some courts even have people who can help you fill out the forms. Ask the clerk at the courthouse if your court has anyone to help you.

The rest of this chapter talks about the process in more detail but first, here is a checklist you can go through that will help you:

• Go to your local Probate and Family Court and pick up these forms:
  • Complaint (either for divorce or paternity);
  • Affidavit Disclosing Care and Custody Proceedings;
  • Financial Statement;
  • Domestic Relations Summons; and
  • Affidavit of Indigency (if necessary--it will waive the costs of serving the papers and the summons).

Fill out the Complaint, and the Affidavit(s), either with a typewriter or with a black pen printing neatly.

• Talk with a lawyer if you have questions or concerns--the people who work at the Probate and Family Court cannot give you legal advice.
• Make copies of your forms:
  • a set for you;
  • a set for the father/ husband
  • a set for DOR (if you or your child are or were a recipient of TAFDC or AFDC).
• File at the Probate and Family Court:
  • the original Complaint;
  • the original Affidavit Disclosing Care and Custody Preoceedings;
  • the Affidavit of Indigency (if you cannot afford to serve the papers and summons).

Before leaving the filing desk, ask for a copy of your approved Affidavit of Indigency, if you are using one (the Register or First Assistant has to authorize it, and may ask for your completed Financial Statement before authorizing it at the Probate and Family Court).

Take your copies of the court papers and the original Summons (and the copy of your approved Affidavit of Indigency) to the sheriff.

• Have the sheriff serve:
  • the father/ husband;
  • DOR (if involved; you can also just mail a copy of the Complaint to DOR; be sure to keep DOR informed of all court dates).

Make arrangements for the sheriff to get the original Summons back to you after he has served the father and filled in the Summons.

You will then need to file the original Summons at the court, to prove that the sheriff served the papers.

Fill out the Financial Statement if you have not already done so (you might need to do this in order to get your Affidavit of Indigency approved). Note that you will have to keep it up to date by filling out a new one, or filing a statement saying the old one is still accurate. Some courts require an update every 90 days.

Fill out a Demand for a Financial Statement form. You file the original with the court, and send a copy to the father, along with a blank Financial Statement form. He has to send you a copy of his Financial Statement and file the original with the court. Now you will know what he claims to be making, his expenses, and if he has any valuables.

Fill out any Motions you might need to file.

File Motions; serve the other party (don't forget DOR if involved). Service of motions may be done by mail; be sure to observe time requirements.

• Get ready for and attend hearing.
• The day of the hearing, check in with the clerk's office to tell them that you are there for a motion.
• Check in with the Family Service Office. Be prepared to go before the judge if you cannot work out an agreement. When you are before the judge, tell the judge what you are asking for and give a brief explanation. Listen closely to the judge and answer any questions as carefully as you can. When in the courtroom, speak only to the judge, and only when the judge asks you to speak.
• Get copies of any temporary agreements/court orders made that day in court.
• Pick up a Request for Pretrial/Trial form, fill it out, mail a copy to other side and file the original (keep copy for yourself).
• Wait for the date of the hearing from the court.

3. How do I file a case?

Filing a case in Probate and Family Court is not that different from applying for a driver's license or a job. First, you have to fill out forms that are described above. Remember, You often have to file "certified" or official copies of documents like marriage certificates or prior court judgments. Usually these documents have raised seals to show they are certified. The clerks of the Probate and Family Court will tell you if you need to file certified documents in your case.

 

Note that you can also file Motions for Temporary Orders at the same time you file your Complaint. See Questions 12-18 for more discussion on Motions for Temporary Orders.

4. Where can I see some examples of the filled out forms?

You can see examples in the appendices of the chapters of this manual:

• Chapter 3 (child support) includes examples of a Complaint for Contempt and a Complaint for Modification, as well as an Income Assignment Form, a Child Support Guidelines Form, and a Financial Statement Form.
• Chapter 5 (209A protective orders) includes an example of an Affidavit Disclosing Care or Custody Proceedings;
• Chapter 6 (custody) includes examples of a Complaint for Custody, a Complaint for Support, and a Complaint to Establish Paternity.
• Chapter 8 (separation and divorce), include examples of a Complaint for Divorce, a Complaint for Separate Support, a Complaint for Custody, a Joint Petition for Divorce, a Motion to Impound Address and an Affidavit in Support of Motion to Impound Address.
• Chapter 9 (paternity) includes an example of a Complaint for Custody, Visitation, and Support.

The complaint forms, along with all the other forms you need, are available free at the clerk's office of the Probate and Family Court. You fill in the blanks to fit your particular situation.

5. What is "service?"

Service is the next step in your case. If the court is going to make a decision that affects a person, that person has to get "legal notice" of the case. That is, the person has to know that a case has been filed so he has a chance to respond and explain his point of view. If you are filing a case, you have to give your abuser legal notice. If the abuser is filing a case, he has to give you legal notice. It is not enough for one party to call the other party on the telephone and tell them about the case. The court wants proof that the documents have been delivered to the other party. This is called “return of service” and it is very important to do this properly because your case cannot go forward without it. The summons, properly filled out, shows that there was correct service and gives the court proof that the other party has legal notice.

6. How do I serve my abuser?

There are several ways to serve a person depending on your situation. Usually, to serve the other party, you take the summons that the Probate and Family Court clerk gave you, along with the approved Affidavit of Indigency (be sure that you have requested that the service fees be paid by the state), a copy of the Complaint, and in some cases, a copy of the Affidavit Disclosing Care or Custody Proceedings to the sheriff or constable's office. The constable or sheriff will take the paperwork and give it to your abuser. The clerk at the Probate & Family Court can tell you what you need to bring to the sheriff.

7. Do I have to use the Sheriff?

In some cases, you may not need to use a sheriff or constable to serve the abuser, because he has agreed to sign a section of the summons saying that he got the paperwork; this is referred to as “accepting service.” He is not agreeing to a divorce or anything else, he is just signing a receipt for the paperwork. He also needs to get his signature notarized. In other cases, the abuser cannot accept service, or even if he can accept service, he may refuse to do so, or you may not think it is safe to ask him to do so. Instead, you can have a sheriff or constable serve him, and the sheriff or constable will then sign the summons and state on the summons that he gave the paperwork to your abuser. A sheriff or constable should know what to do in your individual case. He should know how the papers have to be served.

Once the papers are served, the sheriff or constable returns the summons to you. You go to the court and file the summons with the clerk as proof that the other party has legal notice. Be very careful with the signed summons and make sure you get it to the court right away; again, without return of service, your case cannot go forward.

8. My abuser lives out of state, what should I do?

If your abuser lives out of state, court rules permit you to serve him by certified mail. However, you should check at your court about local practice. It might be better to arrange for the sheriff where he lives to serve him. Your local sheriff’s office should be able to put you in touch with the sheriff’s office where the abuser lives. If you have an approved Affidavit of Indigency, you should be sure that the out of state sheriff is willing to bill the Massachusetts court for his services. You might have to call a few different places to find a sheriff who will accept your Affidavit of Indigency and bill the Massachusetts court.

9. What if I don’t know where my abuser is living?

If you do not know where your abuser is living, you will have to ask the court for permission to serve him by “publication and mailing.” Service by publication and mailing means that the summons must be published for a certain number of weeks in a newspaper and then mailed to the abuser’s last known address. You will need to check with the clerk of the court to find out the procedures that apply in your case. You should be sure to ask the clerk which newspaper you need to have the summons published in; this varies, depending on the type of case and the court you are in.

10. I have served my abuser. What comes next?

In most cases, your abuser has 20 days after he signs the summons to file an answer to your complaint (the summons tells him how much time he has to answer; usually it is 20 days; in contempt cases, it is 7 days). In his answer he should respond to your complaint. (See Appendix E of Chapter 9 and Appendices F and G of Chapter 7 for sample answers.)

If you have filed Motions for Temporary Orders, they can be heard even before he has filed an Answer but not until he has been served.

11. I’ve just been served with papers from my abuser, what should I do?

Relax. You have time to respond if you just got served. You should try to talk with a lawyer, and show her the Complaint.

Read the papers you were served. One is a Complaint, and one is a Summons. The Complaint will tell you what the other side is saying. Look at the bottom of the Complaint. See if he wants custody, or if he just wants visitation. At the bottom right, the Complaint is signed. If only his name appears there, it means he does not have a lawyer (yet).

You should prepare an Answer to the Complaint. Look at the Complaint. Each sentence is numbered. You have to say whether you “admit" (agree) or “deny" (disagree) with each numbered part of the Complaint. Do this on a separate sheet of paper. See sample Answer in Appendix E at the end of Chapter 9.

You can file Motions with your Answer. See sample Motions in the Appendices to other Chapters.

Here's a checklist you can go through that will help you:

• Take your original Answer and any Motions to the court. File the Answer and any Motions. At the court, get the Docket Number of the case if it does not appear on the Complaint. Filing an Answer does not cost anything. You have 20 days from the day you receive the Complaint to file your Answer.
• Mail a copy of your Answer and any Motions to the other side. Look at your Summons. That will give you the address to use. If the other side has a lawyer, you must mail your Answer to the lawyer.
• Is DOR involved? If so, send a copy of your Answer and any Motions to DOR, too. Put the Docket Number on your Answer.
• Fill out the Financial Statement form; if the other side does not send you a demand for it, you will still need to bring it to court on the day of the hearing.
• If you have not filed any Motions, the case will not be heard at court unless a Request for Pre Trial/Trial form is filed. Either side can do this. Usually, the person filing the Complaint does this, but if you decide you want to have the case heard, you can fill it out and file it.
• Get ready for court. You will get a notice from the court with a hearing date once the Request form is filed.
• On the day of your hearing:
  • Go to court.
  • Check in at the desk, and find your courtroom--check with the clerk in that courtroom.
  • You may be told to go to Family Service; if so, go there and check in with the Family Service clerk.
  • If you are a victim of abuse or violence from the other side in your case, be sure to tell that to the Family Service Officer. If you do not feel safe sitting in the same room with the other side, you may ask that the Family Service Officer meet with you separately.
  • Do not agree to anything unless you understand what it means. Do not sign anything unless you understand it and really agree with it.
  • Get a copy of anything you sign, especially if it is an agreement.
  • If you do not come to an agreement, go in front of the judge. Tell the judge what you think is fair and why. Speak only to the judge when in the courtroom; do not talk to the other side when in court, and do not interrupt.
  • Listen to the judge's questions, and try to answer them carefully and directly.
  • Get a copy of any court orders or agreements made that day.

12. What are Motions for Temporary Orders?

A motion is simply a written request to the court to make a temporary order of some

sort. Some of the most common motions are motions for temporary custody, motions for

visitation, and motions for temporary child support. When you file a motion, you also file a written statement, or Affidavit in support of the motion, explaining why you want the order. You also must file a Proposed Order, detailing what you want the court to order. There are examples of motions, supporting affidavits and proposed orders in many of the appendices to other chapters in the manual. Motion forms and affidavit forms are available free from the Probate and Family Court clerks.

Before filing your Complaint, or while you are waiting for the Answer to your Complaint, you should think about whether you need to file Motions for Temporary Orders. Motions for Temporary Orders ask the court to deal with important issues while you wait for the complaint to go to trial, or final hearing, which can often take a long time. You have to serve Motions for Temporary Orders on your abuser, though the rules are not as strict as they are for serving complaints.

You can file Motions for Temporary Orders with the Complaint, and have the sheriff serve the abuser with the Motions when he is serving the Complaint. If you wait until after the sheriff has served the Complaint and the summons has been filed, you can serve the Motions on the abuser yourself (either in hand or by mail). The important thing to know is that a Motion, the Affidavit and the Proposed Order must be served on your abuser at least seven days before the hearing if you serve it in hand, or at least ten days before the hearing if you serve it by mail. Usually you can choose a date to have the court hear your Motion; you should check with your local Probate and Family Court about their procedures for scheduling Motions. Usually courts do not hear Motions every day.

13. How is a temporary order different from a judgment?

It can take over a year for a Probate and Family Court case to end with a

“judgment,” so the judge often needs to make temporary orders about what is going to happen in the case while you are waiting for a final decision.

In general, a temporary order only lasts until it is changed by another temporary order, or until there is a " judgment" in a case. A temporary order, as it sounds, is less permanent than a final order or judgment of the court. Sometimes cases do not reach a final judgment because they are dismissed or no one keeps the case going. A temporary order in cases like this might not remain in effect. It may be a good idea to try to get a judgment in your case or to speak to a lawyer about this issue.

The judgment comes at the end of a case, after you have signed a final agreement or have had a trial. To change a final judgment, you have to file and serve a Complaint for Modification, and prove that the situation has changed significantly since the date of the final judgment.

14. What happens when I go to court for a Motion hearing? How does the judge decide on Motions?

When you go into court on the date of the motion hearing, you may be required to go the Family Service Office for "mediation" or "dispute resolution," prior to going before the judge. If there is abuse or a 209A protective order, be sure to tell the Family Service Officer so that you will not be required to be in the same room with your abuser. If you are able to reach an agreement, you will probably have to present the agreement to the judge for her approval. If you cannot reach an agreement, you will have to go before the judge for a hearing.

When you get into the courtroom, you must wait for the clerk to call your case. When your case is called, you and the other party will go before the judge. The judge will give you both a chance to speak. The judge will then decide on the Motion based upon what he hears from you and your abuser in the motion hearing, and based on your Affidavit.

15. What happens once the judge decides the Motion?

Once the Motion is decided, the court issues a written temporary order. If the judge grants what you are asking for, she may just sign the proposed order you have submitted, or retype it and sign the retyped order. You will get a copy of this order at the courthouse (if it is decided and written the day you are in court) or in the mail (if the judge takes your motion under advisement and decides later, or types it up later). The temporary order lasts until it is changed by another temporary order or until a judgment is entered ending the case.

16. How many Motions can I file before the final judgment?

You can file as many Motions as you need to. If the situation changes, you may need to file a Motion to address the changes. However, use common sense. If you are in court on Motions every day over silly issues, the judge may get angry.

17. I have temporary orders, so everything is okay for now. How do I get a judgment in my case?

If you and the other party agree, you can file an agreement on how you want to resolve the case and ask for the judge to approve your agreement and make it into a court judgment. If you cannot come to an agreement, you go to trial, but before you have a trial, you need to have a "pre-trial conference." Ask the clerks about the specific form you use to schedule a pre-trial conference. In most cases, you will not get a pre-trial conference date unless you ask for one. And, in some cases, you cannot get a pre-trial conference date until you complete court ordered requirements (such as taking an approved parent education class).

18. What are some of the things I need to know about the pre-trial conference?

You will receive a notice from the court (usually called a Pre-trial Notice and Order) telling you the date for the pre-trial conference, and giving you a list of things you must do before the conference. You should read this Pre-trial Notice and Order very carefully and follow it; it is an “order” of the court and you can get in trouble with the judge for not following it. One of the things you will have to do is complete a Pre-trial Memorandum, and file it with the court and the other party before the pre-trial conference. This is intended to narrow the issues for the trial. Some courts require that you and the other party complete a Joint Pre-Trial Memorandum by a certain date before your conference; others require you to submit Affidavits from witnesses you intend to call at a trial. In some courts, if the only witnesses are the parties, you may be required to go forward with the trial that day. Again, read the Pre-Trial Notice and Order (also called a Pre-Trial Notice and Memorandum) very carefully so you know what you have to do in your case. There is a sample of a Pre-trial Notice and Order in Appendix C.

Ask the clerks or a local lawyer about what you are supposed to do at the pre-trial conference. Practices are different in different courts. Generally speaking, at the pre-trial conference, you meet with court personnel (it may be a judge, a mediator or some other neutral person) and try to figure out what issues you and the abuser agree on and disagree on and how long the trial will take. At the pre-trial conference, you are supposed to know who your witnesses at the trial will be and what they will say. Often the parties come to an agreement or settle at the pre-trial conference, and the case gets resolved in a judgment entered that day.

Even though an agreement may end your case more quickly, if you are thinking about making an agreement at the Pre-Trial Conference you should get legal advice before signing one. There are complex legal issues known as merger, survival and incorporation which you should ask for legal advice about before you give an agreement to the judge. You should know that any part of the agreement regarding the children (child support, custody, visitation) can always be changed by the Probate Court later if you can show a substantial change in circumstances. This is because it is expected that children’s needs will change. However, the language you choose about merger, incorporation and survival determines how the Court will treat your agreement later on if you want to change other parts of it. For example, if an agreement is “merged and incorporated and does not survive as an independent contract” it means that you can at least try to change it later in the Probate Court if you can show the court that your circumstances have changed. If the agreement “survives as an independent contract,” however, you cannot even try to change it in the Probate Court. So, for example, if you agree to something in an agreement which survives, and later change your mind, it’s too bad - it is like any other contract you sign and the Probate Court cannot change it (though you might be able to try to change it in Superior Court under contract laws, that is beyond the scope of this manual). Again, issues regarding children - child support, custody, visitation - cannot be treated this way; the Probate Court always has the power to change these things.

If the case does not get resolved during the pre-trial conference, you will be sent a trial date. You may have to wait a long time for your trial date. If you and the other party come to an agreement at any time after the pre-trial conference date, you might be able to file your agreement with the court and ask for a quick hearing instead of a trial.

19. What happens at the trial?

A complete explanation of what happens at the trial is beyond the scope of this manual. As mentioned in Question 1, if your case is complicated and involves many issues, you should get a lawyer involved right from the beginning.

The short version of what happens at the trial is that both sides bring their witnesses and other evidence to court and tell the judge what they want and their points of view. The judge decides based on the evidence, which may include reports from therapists, DSS workers or other important witnesses.

After the trial, the judge issues a judgment and your case is over.

Be aware, however, that even if this case is over, you may have to go back to Probate and Family Court some day. This is because issues regarding children, such as support, custody and visitation are never really “final.” Both you and your abuser might bring a Complaint for Modification to change or modify a judgment. However, you should know that you will need to show the judge that there has been a substantial change in circumstances warranting a change in the judgment.