Payment on the Eve of Trial: No Longer a Tactic to Leave Your Ex-Partner Trapped with Legal Fees

Issue January/February 2023 January 2023 By Meagan R. King
Young Lawyers Division Section Review
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Meagan R. King

For years, practitioners in the probate and family courts throughout the commonwealth have struggled to explain to clients that although their spouse has not paid alimony and/or child support in accordance with a court order, they may be stuck incurring legal fees to recover the monies owed to them. Although a state statute provides that a judgment of contempt for failure to comply with an order for monetary payment creates a presumption that the plaintiff is entitled to receive attorneys’ fees from the defendant, the issue remains that there must be a “judgment of contempt.” A judgment of contempt requires a finding from the Probate and Family Court that the defendant is in arrears at the time of the hearing. Although recovering attorneys’ fees seems feasible when reading the statute, it allowed for the defendant to wait until the eve of trial to make a payment, thus avoiding having to pay the plaintiff’s attorney’s fees. With the backlog in the court due to the COVID-19 pandemic, this could mean that a plaintiff who is owed alimony, child support or a monetary payment could wait months or even up to a year for a payment that is owed to them and still be responsible to pay their attorney’s fees. 

Throughout the commonwealth, there is an increased awareness of the cost of representation, and there often becomes a practical question that individuals must ask themselves: Does the cost of hiring an attorney outweigh the amount of money owed to me? Is it worthwhile to proceed, or do I just let it go despite being owed the money? 

A recent decision in the Appeals Court may have provided a remedy for just that situation. In a case decided in November 2022, a husband owed the wife $2,475 in past-due alimony payments, which he proceeded to pay only after the complaint for contempt was filed. In Girouard v. McSweeny, 21-P-696, the court ruled that although as of the date of the contempt trial the husband was no longer in contempt, it should not absolve him of paying the wife’s reasonable attorney’s fees that were incurred to enforce the divorce judgment. Although this was a decision pursuant to M.A.C. Rule 23.0 and therefore only has persuasive value, it provides practitioners important guidance. In essence, the court determined that all reasonable attorneys’ fees that were incurred to enforce the judgment, up until the time of the payment, are recoverable by the plaintiff. While this provides some relief to the plaintiff, the question that remains is whether this decision goes far enough to protect plaintiffs. In order to recover attorneys’ fees up until the point of payment, the plaintiff must still proceed to court, in turn forcing the plaintiff to incur more attorneys’ fees, which will not be ordered to be paid by the defendant. 

Although this is undoubtedly a step in the right direction for plaintiffs in the Probate and Family Court, it remains only a persuasive decision. 

Meagan R. King is a partner of King & Farrell Law and excels at working closely with clients to deliver the best results. King has represented clients on Cape Cod and the Islands throughout her career as a family law attorney after graduating from Suffolk University Law School magna cum laude. King is an active member of the Massachusetts Bar Association, entering her second year serving as a board member of the Young Lawyers Division, and is actively involved in the local community as a member of Cape Cod Young Professionals (CCYP) and the Barnstable County Bar Association.