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  • PART II REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS
  • TITLE III DOMESTIC RELATIONS
  • CHAPTER 209 HUSBAND AND WIFE
  • Section 32F Married persons living apart; actions for support

Section 32F. (a) If no order for support pursuant to an action filed under chapters two hundred and seven, two hundred and eight or section thirty-two of this chapter has been entered, the district court, the Boston municipal court or the probate and family court shall have concurrent jurisdiction under this section to order a spouse to support the other spouse or to order a parent to support his dependent child; provided however, that nothing herein shall be construed to grant jurisdiction to the district court or Boston municipal court to determine the parentage of a child. A complaint may be filed by the IV-D agency against a spouse seeking an order for support of his dependent child. A complaint may also be filed by a married person for the support of the dependent child in his care or, if living apart from his spouse, for his own support. The court shall have jurisdiction to order a sum to be paid periodically for the current support of a child or of a spouse and child or of a spouse and shall have jurisdiction to order a spouse or parent to reimburse the other spouse or the IV-D agency on behalf of the department of transitional assistance or the department of children and families for past support including medical expenses, provided to his spouse or child, notwithstanding the fact that at the time of the hearing the parties are no longer receiving public assistance. When an action is commenced by the spouse or, on behalf of the child entitled to receive support, by the guardian, next of kin or person having care and physical custody of the child, and the spouse or child is or was a recipient of benefits under chapters one hundred and seventeen, one hundred and seventeen A or one hundred and eighteen, the court shall require notice to the IV-D agency of the pendency of the action and the agency shall be permitted to intervene in such action. When the action is commenced on behalf of such department of transitional assistance or said department of children and families or anyone other than the spouse or parent of a child entitled to receive support, the court shall ensure that such spouse and all parties are notified of the action and of any motions for temporary orders for support. A spouse or parent or custodian shall be permitted to intervene in the action as of right. In an action pursuant to this section where the rights to support of a party have been subrogated to the commonwealth pursuant to chapters 18, 119, or 118E, or Title IV, Parts A or E, or Title XIX of the Social Security Act, or any other public assistance program as required by federal or state law, the court shall proceed to establish an order for support pursuant to this section, notwithstanding the failure of the party to attend a hearing, upon a showing that written notice of the hearing was provided to the party by first class mail to the most recent residential address that the party has provided to the department of transitional assistance, the department of children and families or the division of medical assistance. For good cause shown, the court may set aside an entry of default and, if an order or judgment has been entered, may likewise set aside the order or judgment in accordance with rule 60(b) of the rules of domestic relations procedure.

(b) Proceedings under this section shall be filed in the judicial district or county where either spouse lives except that if the action includes or is on behalf of a minor child who does not live with either parent, the action shall be filed in the judicial district or county where the child lives. There shall be no filing fee for actions pursuant to this section. Service of the complaint shall be made in accordance with applicable rules of court. In addition to those otherwise authorized to serve civil process, any officer authorized under the laws of the commonwealth to serve criminal process may serve any process under this section.

(c) During the pendency of an action under this section and pursuant to the procedures adopted under chapter two hundred and twenty-one B, if applicable, temporary orders providing for the support of the spouse or children, may be entered. Such orders shall continue in force until modified or revoked, and shall be superseded by an order or judgment pursuant to an action under chapter two hundred and eight, under section thirty-two of this chapter or under chapter two hundred and seven.

(d) In determining the amount of the child support obligation or in approving the agreement of the parties, the court shall apply the child support guidelines promulgated by the chief justice of the trial court, and there shall be a rebuttable presumption that the amount of the order which would result from the application of the guidelines is the appropriate amount of child support to be ordered. If, after taking into consideration the best interests of the child, the court determines that a party has overcome such presumption, the court shall make specific written findings indicating the amount of the order that would result from application of the guidelines; that the guidelines amount would be unjust or inappropriate under the circumstances; the specific facts of the case which justify departure from the guidelines; and that such departure is consistent with the best interests of the child.

(e) The court has continuing jurisdiction to modify, increase, decrease or revoke a judgment of support at any time after the judgment was made upon a complaint for modification pursuant to section thirty-seven. If the IV-D agency is responsible for enforcing the case, an order may also be modified in accordance with the procedures set out in section 3B of chapter 119A.

(f) No proceedings under this section shall be commenced or entertained if there is a prior pending action between the spouses or regarding the child entitled to support under chapters two hundred and seven, or chapter two hundred and eight or under section thirty-two of this chapter. If an action under chapters two hundred and seven, two hundred and eight or section thirty-two of this chapter is filed after the commencement of proceedings or after a judgment under this section, any support order or judgment issued in such action shall supersede any support order or judgment and any income assignment made under this section. Nothing herein shall prevent the probate and family court department in any proceeding under chapters two hundred and seven, two hundred and eight or section thirty-two of this chapter from entering an order or judgment enforcing any order or judgment under this section which has not been paid or entering an order or judgment enforcing provisions for payment contained in a judgment entered under this section.

(g) The administrative justices of the district, Boston municipal and probate and family court department of the trial court shall jointly promulgate a form of complaint for use under this section which shall be in such form and language to permit a plaintiff to prepare and file such complaint pro se.

(h) Any action pursuant to this chapter that is pending or was previously adjudicated in the district court or Boston municipal court departments may be transferred to the probate and family court department by any party or by the IV-D agency as set forth in chapter one hundred and nineteen A. An action shall be transferred upon the filing of the following documents with the probate and family court:— (1) a copy of the petition, if any, and any accompanying documents; (2) a copy of the order of the district court or Boston municipal court, if any; (3) a copy of the findings of the court, if any; (4) a copy of the financial statements submitted by the parties, if any; (5) a copy of the worksheet used to calculate the amount of the child support order pursuant to the child support guidelines, if any; and (6) a copy of the docket maintained by the district court or the Boston municipal court, if any. Once transferred, the order of the district court or the Boston municipal court shall have the same force and effect, and shall be subject to the same procedures and defenses as an order of the probate and family court and may be enforced or modified in the same manner available to enforce or modify any judgment or order of the probate and family court. Transfer of an order pursuant to this section shall not limit the use of any enforcement remedy, whether judicial or administrative, that may be available and the probate and family court shall preserve all arrears that have accrued pursuant to the order of the district or Boston municipal court departments.