Massachusetts---Modification of CS/College Expenses

[lookingforanswers]

Spoke with my Attorney on Friday, he met with the plaintiff and her Attorney in court, the case was dismissed due to my income not being sufficient enough to warrant a change in existing order.  My attorney did mention that the modification was being left open.  I guess she believes that I am not reporting my self employment income accurately to the IRS.

 Really there is nothing to see in my income, I have a very small business employing 2 fulltime people and subcontracting out the rest.  Everyone receives a 1099.  Also, my personal and business taxes are prepared  by a CPA.

I am sure that she is quite PO due to the fact that her gravy train was not increased.  Couple of quick questions.

1.  How long can a modification be held open?

2.  I am thinking that she might look into a forensic accountant, how costly would that be in dollars and cents?

3. Why was it held open?

Many thanks!!!!!!

PS  I can see the light at the end of the tunnel, youngest daughter turns 18 in one year

:7

[socrateaser]

>1.  How long can a modification be held open?

Until local law/rules requires that the court dismiss on its own motion for failure to litigate.

>
>2.  I am thinking that she might look into a forensic
>accountant, how costly would that be in dollars and cents?

Depends on how much paperwork to review is involved. $2-3K is typical.

>
>3. Why was it held open?

Um, because your attorney is not properly analyzing the case, in my opinion. You are entitled to a ruling on your motion, and not an indefinite continuance. Leaving the motion open means that if the court later determines that your income at the time the original motion was filed was sufficient to justify an upward mod, then the court can make the new CS order RETROACTIVE TO THE DATE OF FILING -- which means that you will be instantly under a horrible arrearage.

So, you get back to your attorney and INSTRUCT him/her to move for a ruling in the case, because your interests are substantially prejudiced by the indefiniteness of the state of litigation.

If your ex wants to later reopen the case, she can always do so, but you won't be subjected to some unknown potential arrears.

Don't take no for an answer. Your attorney works for you, and you are about to get screwed by an attorney who either is not informing you as to the risks of leaving this order open, or who is not aware of the risks.

You can certainly ask your attorney if there are any risks first and she what he/she advises. Then if the attorney says that there is no risk, you can say that you heard from another attorney in passing conversation that leaving the motion open leaves you at risk of a substantial retroactive order of arrears.

Then, if the attorney still says "no," I would ask for the case law in support of this position, and that if the attorney is not correct, then you will refuse to pay for the cost of researching the case law, and you will be looking for a new attorney, and probably filing a complaint with the state disciplinary authority, because this is federal law at issue and is the same in every jurisdiction, and any reasonably competent family law attorney should know that you're being set up to take a fall.