How To: Change or Enforce Your Maine Divorce or Parental Rights Order

How To: Change or Enforce Your Maine Divorce or Parental Rights Order admin Thu, 05/21/2020 - 09:28

Content Type for Facets

Do I need to modify (change) or enforce a Parental Rights and Responsibilities or Divorce order?

If you are trying to modify (change) or enforce a final order from a Parental Rights and Responsibilities or Divorce case, you might find some helpful information here. This guide can help you if you:

Have a final divorce order and you have children with the other person
Have a final parental rights and responsibilities order

And you:

Need to modify (change) that order, or you
Need to enforce that order.

Why would I need to modify (change) an order?

You might need to modify—or change—an order if there has been a change of circumstances. This means that things in your life or your children’s lives have changed, and because of those changes, the final order you got from the court does not work anymore. You can ask to modify almost any part of the final order based on the changes in your life, but there are special rules for child support and you will probably not be able to change the part of a divorce order that splits up property or possessions.

Why would I need to enforce an order?

You might need to enforce an order if the other person involved in the order is not following the order and you need the court’s help to force the other person to follow the order. You can file to enforce any part of the final order.

What if I have a final divorce order and I need to modify or enforce it, but I do not have children with the other person?

You should still read the tips on this page. Even if you do not have children, you can modify (change) some parts of the spousal support part of your divorce order, or you can file a motion to enforce your divorce order if the other person is not following the order. Some of the information here will help you do that. Follow the same steps for filling out and serving the forms. A Judge (not a Family Law Magistrate) will decide what steps to take in your case, and the Court will tell you when you need to come to court.

Should I Get a Lawyer?

A family law matter is serious and the results could affect your family for many years. You should try to get help from a lawyer if you can. But we know that there are not enough free lawyers to help everyone who can't afford one.

If you can't get a lawyer, this guide, along with the forms you get from the Court, will help you get started. If you file either a Motion to Enforce or a Motion to Modify and you have children with the other person, a Family Law Magistrate will try to help you and the other party through the process, before you see a Judge. Even so, you must prepare your paperwork and court case carefully.

If you need more help with filling out the forms or have other questions about your court case, you may be able to get help from a Courthouse Assistance Project run by the Volunteer Lawyers Project. The Volunteer Lawyers Project sends lawyers to courts around Maine to give quick advice on family law matters and to help people fill out forms.

If you need more help with:

Getting food or shelter
Paying for medical care
Getting benefits, like TANF
Escaping domestic violence
Other legal issues

Call Pine Tree Legal Assistance

How this guide works

We've set up this guide to follow the most common paths for modifying (changing) or enforcing your divorce or parental rights and responsibilities orders in Maine. The numbered steps are in the order you will need to complete them. The general topics are numbered on the left side of your screen.

Click on the name of the step you want to visit OR use the “next” and “previous” buttons at the top of each page to go between sections of the guide.

Note: Not all courts follow the same steps in the same order, but in this guide we lay out the most general, basic steps that each case must go through. You should talk with the court clerk in the court where your case will be heard to find out how that court usually handles these cases.

Updated August, 2022

PTLA #323

Main Legal Topic

Divorce, Custody, & Family

Changing or Enforcing Divorce & Parental Rights Orders

Divorce & Parental Rights

Which motion do I need?

Which motion do I need? admin Thu, 05/21/2020 - 09:32

About the motions

To change or enforce your court order, you will need to make one of three “post-judgment motions.” “Post-judgment” just means you already have a final order and you are looking to do something after the final order was given. A “motion” is a request you file with the court asking the court to do something—in this case, to change or enforce your order. The three motions are:

Motion to Modify
Motion to Enforce
Motion for Contempt

Which motion do I need?

Motion to Modify

Use this motion if you need to change your order. By filing this motion, you are asking the court to change something in your final order. You must be able to show that there has been a "substantial change in circumstances" since the last court order. You can’t file a Motion to Modify just because you don’t agree with the order. And usually, you shouldn’t file a Motion to Modify too soon after the court gave the final order.

If things have changed in your or your children’s lives, you can ask to modify almost any part of the final order based on the changes in your life. Some examples of what you can change are:

Child support, up or down
Child custody issues (like where a child lives most of the time, or who makes decisions for the child)
Visitation issues (how often each parent sees the child)
Spousal support (alimony)

Note: If your first order was a divorce, you will probably not be able to change the parts of your divorce that split up property or possessions.

What is a “substantial change in circumstances?”

This means that things in your life or your children’s lives have changed since the final order, and because of those changes, the final order you got from the court does not work anymore.

Some things that could count as a “substantial change” include:

A change in your income or the other party’s income (like getting or losing a job) that would change the child support order by 15% or more, up or down.
A change in a parent's schedule or where a parent lives that affects the parent’s ability to care for or visit the child.
A change in the ability of one parent to be fully involved in the life of the child.
Safety issues which affect the life of a child.
One parent not working well with the other.
A change in a party's financial situation (like getting or losing a job) that might call for a change in spousal support (alimony).

If 3 years have passed since your most recent child support order, you can file a motion asking for a change in child support without having to prove a "substantial changes of circumstances."

Note: There are many more things that might be a “substantial change of circumstances.”

Motion to Enforce

Use this motion if the other party isn’t following your order and you want the court to enforce it.

Motion for Contempt

This is an alternative to the Motion to Enforce (see above). It is more serious. If you file this kind of motion:

You need to get a Judge to give you permission to file the motion.
Only a Judge can hear your case. You may have to wait longer to get a hearing with a Judge.
The forms and court process are more complicated, compared to a Motion to Enforce.
On a Motion to Enforce, if you have children with the other person, the Judge will review your case up front, to figure out the steps your case will take. They may refer you to Mediation, especially if the only issue is child support. At mediation, someone called a Mediator will try to work things out between you and the other person. These steps are more informal than a Judge-held court hearing and easier to handle without a lawyer. On a Motion for Contempt, you will have a formal hearing in front of a Judge, and will not have a chance for Mediation.
You will have to prove more at the formal hearing to get a Contempt Order. Your “burden of proof” (what you have to show to get what you want) is higher than it is for a Motion to Enforce.
You will have to prove that the other person did not follow the order, and that the other person had the ability to follow the order.
A Judge may order more serious punishment, including jail time.

Using a Motion to Enforce is usually simpler and should work to get what you need. But, if the other party is ignoring an earlier Order to Enforce or they just won’t do anything the court orders, you might want to go the next step by bringing a Motion for Contempt. A Motion for Contempt is a little more complicated, but we do have step-by-step instructions on how to do this, too.

Getting the court forms

Getting the court forms admin Thu, 05/21/2020 - 09:36

If you aren’t sure which motion you need to use, read over Which motion do I need? to learn more about each motion.

Motion to Modify

Get the forms packet for a Motion to Modify from the District Court clerk (it costs $5.00) or get a Motion to Modify forms packet online from the State of Maine Judicial Branch website. Read the instruction page, Form FM-088, carefully. Review your original judgment (your order) and any earlier orders changing the judgment. When you fill out the motion form, you will need to explain which court order(s) and which parts of those orders you want changed.

Be ready to pay these court costs:

Service: $15-$40 or more (depending on the type of service)
Filing fee: $80
Mediation: $140 ($70 for each party. This fee pays for two mediation sessions, each about 2.5-3 hrs long).

Note: There is no filing fee for a Motion to Modify child support only.

If you have a low income and can't pay these fees, ask the clerk for an “Application to Proceed Without Payment of Fees” and an “Indigency Affidavit” or get these fee waiver forms on our website. Fill these out, along with the other court forms. The clerk, or an attorney or notary public, must witness you sign the Indigency Affidavit.

If you get TANF, SSI, or general assistance, the court should waive the fees. Contact Pine Tree Legal Assistance if you are denied.

To file your motion, go back to the District Court where you got your judgment (the order). In some situations, you may be able to get a different court to hear your motion. But you would probably need a lawyer’s help to get your case moved.

Motion to Enforce

Get the forms packet for a Motion to Enforce from the District Court clerk or get a Motion to Enforce forms packet from the State of Maine Judicial Branch website. Read the instruction page, Form FM-089, with care. Review the judgment (the order) in your case, along with any later court orders that changed the original judgment. Be sure your Motion is clear about which order, and which part of that order, you are trying to enforce.

Be ready to pay these court costs:

Service: $15-$40 or more (depending on the type of service)
Filing fee: $80
Mediation: $140 ($70 for each party. This fee pays for two mediation sessions, each about 2.5-3 hrs long).

Note: There is no filing fee for a Motion to Enforce child support only.

If you have a low income and can't pay these fees, ask the clerk for an “Application to Proceed Without Payment of Fees” and an “Indigency Affidavit” or get these fee waiver forms on our website. Fill these out, along with the other court forms. The clerk, an attorney, or a notary public must witness you sign the Indigency Affidavit.

If you get TANF, SSI or general assistance, the court should waive the fees. Contact Pine Tree Legal Assistance if you are denied.

Motion for Contempt

Get the Motion for Contempt forms packet from the District Court clerk. You can also get a Motion for Contempt forms packet from the State of Maine Judicial Branch website, except for the Subpoena form. You must pay the court clerk $5.00 for a signed Subpoena. We will cover what to do with that Subpoena form later in this guide.

Read the information cover page, the first page in the packet (called Form FM-090), carefully. Review the original judgment or order in your case, along with any later orders that changed or enforced your original judgment. When you fill out the Motion, be clear about which order, and which part of that order, you are trying to enforce.

Be ready to pay these court costs:

Service: $15-$40 or more (for the Sheriff)
Filing fee: $60
Mediation: There will be a formal hearing rather than mediation.

Note: There is no filing fee for a Motion for Contempt for failure to pay child support only.

If you have a low income and can't pay these fees, ask the clerk for an “Application to Proceed Without Payment of Fees” and an “Indigency Affidavit” or get these forms on our website. Fill these out, along with the other court forms. The clerk, or a notary public, must witness you signing the Indigency Affidavit.

If you get TANF, SSI or general assistance, the court should waive the fees. Contact Pine Tree Legal Assistance if you are denied.

To file your motion, go back to the District Court where you got your judgment. In some situations, you may be able to get a different court to hear your motion. But you would probably need a lawyer’s help to get your case moved.

How to fill out the forms

How to fill out the forms admin Thu, 05/21/2020 - 09:41

Find the motion you will use below to learn more about the court forms you will need. If you aren’t sure which motion you need to use, read over Which motion do I need? to learn more about each one.

Motion to Modify

You can get the Motion to Modify forms packet from the court, but they may charge you $5.00. You can also get the Motion to Modify forms packet online from the Maine Judicial Branch website. No matter where you get the forms, you can follow the instructions below.

Filling out the Motion to Modify (FM-062) and the other forms you need to file:

1. First, read Form FM-088 very carefully. This form is not something you fill out. It gives you instructions on how to fill out a Motion to Modify and what to do with all the court forms.

2. Next, go to Form FM-062. Fill out the heading portion of Form FM-062 by copying from your original judgment, or order. The court location, docket number, and names of the plaintiff and defendant stay the same. If you were the plaintiff during the first case, you are still the plaintiff. If you were the defendant, you should still put yourself as the defendant. If you can't find your judgment (the order), you can buy a copy from the clerk at the District Court where you first got your order.

3. Next, on the Motion form, if you are filing for a change in child support only, check the box at the top right under where it says Motion to Modify.

4. Under #1 and #2 on the form, state whether you were the plaintiff or defendant in the first case and where you and the other person now live, if you know, unless this information is confidential. You must make reasonable efforts to find the other person.

5. Under #3, fill in the date of the judgment or order you are trying to modify. Check one or more boxes to indicate the type of changes you want to make. Be sure to include all the changes you wish to make. If you do not check a box, you may not be able to ask the court for it later. If you are asking to change child support, you will need to fill out Form-050, Child Support Affidavit.

6. Under #4 and #5, fill in the child information requested, unless that information is confidential. Under #6 and #7, state whether anybody else besides you and the other person has a possible right to custody or visitation with the children and whether there are any other court cases about the children.

7. Under #8, answer the questions about public assistance. If your children have received TANF, food stamps, SSI, general assistance, or MaineCare, you must send a copy of the Motion to DHHS at the address on the form by mail.

8. Under #9, explain in detail the Substantial Change In Circumstances that has happened that is making you ask for a change in the prior judgment. Remember, if 3 years have passed since your most recent child support order, you can file a motion asking for a change in child support without having to prove a "substantial change in circumstances." If you run out of room, you can attach another piece of paper, but make sure you get that piece of paper notarized, too, and make sure you put the docket number at the top.

9. Under #10, tell the court what changes you are looking for. This could include changes in custody, visitation, primary residence, pick-ups and drop-offs, decision-making for your children, child support, spousal support, or other issues affecting your family. If you need another page, make sure to notarize it and put the docket number at the top.

10. Sign and date the motion, state whether you are the plaintiff or defendant, and put your address and phone number unless this information is confidential. This is a sworn document. You must sign the Motion in front of a lawyer, notary public, or court clerk who will notarize your signature. Do the same for any extra pieces of paper you attached to your Motion.

11. On the fifth page, fill in the names of the plaintiff and defendant, the location of the court, the docket number, and the address of the court. The rest of the page is about how you served the other person. The next section gives you more information about serving the other person.

12. Next, complete the other forms in your packet. Form FM-088, which are instructions, can help you. Fill in all of the blanks.

Frequently Asked Questions

Q. If I am afraid of the other party, do I have to say where I am living or what my telephone number is when I fill out the court forms?

A. No. You can write "confidential" where the forms ask for address and telephone. Then ask the clerk for an Affidavit for Confidential Address form or find it online on the Maine Judicial Branch website. Write down why you think this information must be kept private to keep you or your children safe. Sign it in front of a notary public, court clerk, or attorney. Then give it to the clerk along with your other papers. The clerk will then "seal" this information so that the others can't see it. The other party can object to this in writing. If they do object, the court may hold a hearing to decide whether the clerk must still keep the information secret.

Motion to Enforce

You can get the Motion to Enforce forms packet from the court, but they may charge you $5.00. You can also get the Motion to Enforce forms packet online from the Maine Judicial Branch website. No matter where you get the forms, you can follow the instructions below.

Filling out the Motion to Enforce (FM-070)

1. First, read the instructions on FM-089. This is not a form you need to file, but it tells you how to fill out the forms and what to do with them.

2. To complete the top part of each form, copy from your original judgment or prior order. The location, docket number, and names of plaintiff and defendant stay the same. If you were the plaintiff in the first case, you are still the plaintiff. If you were the defendant, you are still the defendant. If you can't find your old judgment or order, you can buy a copy from the clerk at the court where you had your first case.

3. On the Motion form, if you are asking for enforcement of child support only, check the box under the words “Motion to Enforce.”

4. Under #1 and #2, check whether you were the plaintiff or defendant in the first case. Tell the court where you live now and where the other person lives now, unless this information is confidential, or whether you don’t know where the other person lives. You must make reasonable efforts to find the other person.

5. Under #3, fill in the date of the order you are trying to enforce. Check the boxes next to the issues you are looking for the court to enforce. Make sure you check all boxes that apply to you or the court may not let you bring it up later. If you are filing about child support, you will have to file and exchange Form FM-050, Child Support Affidavit.

6. Under #3 you can select the part of the order that the other person is not following.

7. Under #4, #5, #6, and #7 write down the names of your children, where they live and have lived, unless that information is confidential, and whether there are any other cases that involve the children or anyone else who has a possible right to custody or visitation with the children.

8. Under #8, answer the questions about your children and whether they have received public assistance benefits. If your children have received TANF, SNAP (food stamps), SSI, general assistance, or MaineCare, you must send a copy of your Motion to DHHS at the address listed on the form by mail.

9. Under #9 you have the chance to describe in more detail how the other party has violated the prior court order. You must describe the violation clearly. List the reasons in the same order as they are listed in #2. Be brief, but use a blank piece of paper if you need more space. Put a docket number on any extra pieces of paper and make sure each extra piece of paper is notarized, too.

10. Finally, under #10, explain specifically what you want the Court to order the other party to do. Again, explain this as simply and briefly as you can. Attach another sheet of paper if you need more room, but make sure to put the docket number at the top and have it notarized.

11. Sign and date the Motion, state whether you are the plaintiff or defendant, and put your address and phone number unless this information is confidential. This is a sworn document. You must sign the Motion in front of a lawyer, notary public, or court clerk who will notarize your signature. Do the same for any extra pieces of paper you attached to your Motion.

12. On the fifth page, put the address of the court. The rest of the page is about how you served the other person. You can learn more about service in the next section.

13. Next, complete the other forms in your packet. Fill in all of the blanks. Form FM-089, which are instructions, can help you.

Frequently Asked Questions

Q. If I am afraid of the other party, do I have to say where I am living or what my telephone number is when I fill out the court forms?

Motion for Contempt

You can get the Motion for Contempt forms packet from the court—you have to get the Subpoena from the Court, and they will charge you $5.00 for the signed Subpoena. You can also get the Motion for Contempt forms packet online from the Maine Judicial Branch website - but you will still need to get the signed Subpoena from the court, which costs $5. No matter where you get the forms, you can follow the instructions below.

Filling out the Motion for Contempt (FM-068) and the other forms you need to file:

Motion for Contempt

First, read the instructions on FM-090. This is not a form you need to file, but it tells you how to fill out the forms and what to do with them.
To complete the top part of each form, copy from your original judgment or prior order. The location, docket number, and names of plaintiff and defendant stay the same. If you were the plaintiff during the first case, you are still the plaintiff. If you were the defendant during the first case, you are still the defendant. If you can't find your old judgment or order, you can buy a copy from the clerk at the court where you got your first order.
Check the box under the “Motion for Contempt” heading if your motion is about child support only.
Then at #1 and #2, and include information about your current address. On #2 include information about the other side’s current address if you know it.
At #3 write the date of the order you are trying to enforce. Then check the box or boxes which fit your issue. Make sure you check all the boxes that apply to you or the court may not let you bring it up later.
At #4, 5, 6, 7, and 8, the form asks for some basic information about your mutual children and about any public assistance benefits they may have received. List the names of the children and where they have lived, unless that information is confidential. Say whether there are any other court cases about the children and whether anyone else other than you and the other person has a possible right to custody or visitation. If the children have been on TANF, SNAP (food stamps), SSI, general assistance, or MaineCare, you must send a copy of your Motion by mail to DHHS at the address listed on the form.
At #9 explain what the other party has done to violate the earlier order. Follow the list of issues you checked in #3 and explain each violation in the same order as the check-boxes. In order to win a motion for contempt, you need to show that the defendant had the ability to follow the order and simply chose not to. So, in this section, you should try to explain why you think the defendant could have obeyed the order. Try to keep your explanations short. If you need more space, you can continue onto a blank sheet of paper, but make sure to write the docket number at the top and have that piece of paper notarized.
At #11, you can ask that the other person bring documents which you think may be useful to your case to the hearing.
Finally, at #12, check the box or boxes that describe what you want the Judge to order to fix the problem. Check the first two boxes. The third box asks for “Remedial Sanctions.” These are orders the Judge could give to make sure that the order is followed or to pay you for the harm the other party has caused you. For example, the Judge could order extra visitation days to replace those that the other party refused to give in violation of the order. The Judge could also jail or fine the other party until that person obeys the order, or make the other person give you money for what you lost while the other person was not following the order. Another thing the Judge can do is require the other party to catch up on child support that was owed but not paid. Check this box if you are asking for these kinds of things from the court. Check the fourth box if you want the Judge to order the other party to pay the costs for what you spent to file and deal with the Motion for Contempt.
Sign and date the Motion, and list your address and telephone number unless this information is confidential. Make sure to have the clerk, a notary public, or an attorney watch you sign the motion and sign it, too.

Before you go to court on your Motion, think about what you think the Judge should do to fix the problem. Then you will be prepared to explain exactly what you want the Court to order.

Frequently Asked Questions

Q. If I am afraid of the other party, do I have to say where I am living or give my phone number when I fill out the court forms?

Order

Next, fill out the form that says Scheduling Order on the upper right-hand side. Fill in the top lines the same way you did with the Motion (copying from your original judgment or order). In the large boxes, add the current addresses for plaintiff and defendant, unless this information is confidential.

The Judge will fill out the rest of the form, by entering a hearing date and time and signing it.

Subpoena

You have to get the Subpoena from the court clerk at the court where your first case was decided. It costs $5.00, unless you got a fee waiver.

The third form you have to fill out is the Subpoena for Hearing on Motion for Contempt. This subpoena tells the other party to come to the court hearing on your Motion. You can also make the other party give you papers or objects that the Judge should see to help them believe and understand your story. For example, you may want to ask for the other party's financial records, tax returns, or other papers if they would help to show that the other party was financially able to follow the order.

Fill out the top part of the form with the location, docket number, and the names of the parties. Next, fill in the name of the other party and check the right box to show if they are the plaintiff or defendant. (For now, leave the middle section—“notification of hearing”--blank.)

If you want to make the other party bring documents to the hearing, check the small box and list the papers you want. If your list is too long, go on to another piece of paper, attach it and note that there is a second page to the subpoena which is “incorporated.” Write the docket number at the top of the new page.

Check the small box, showing whether you are the plaintiff or defendant. Fill in the date.

The clerk's signature should be on the form. The Sheriff will fill out the back page.

Summary Sheet

The fourth, and last, form to fill out is the Summary Sheet. Follow the detailed Instructions for Completing the Summary Sheet that came in your forms packet, Form FM-090.

After you finish filling out the forms

Make 2 copies of your Motion and 1 copy of your Summary Sheet.
Then take the original forms back to the clerk and keep the copies. (If you are asking for a fee waiver, file the waiver forms at the same time. You can get these forms on our website.)
The clerk will show your papers to the Judge. The Court will set a date and time for the hearing. If you have done everything correctly, the Judge will sign the Order. The clerk may fill in the hearing date and time and court location on the Subpoena for you. If not, add that information to the Subpoena by copying it from the Order.
Make a copy of the Order and 2 copies of the Subpoena.

Then you will be responsible for serving the Motion, which is explained next in this guide.

How to serve and file the forms

How to serve and file the forms admin Thu, 05/21/2020 - 09:44

Motion to Modify

You need to give or send copies of your completed forms to the other party before the court will hear your case. The forms packet you got from the clerk or online tells you how to do this, Form FM-088. Follow the steps carefully.

You have three options for service

Option One: Regular mail

Make two copies of your forms. Keep the originals and one copy.
Then, mail a copy of your Motion to Modify, a copy of your Child Support Affidavit, and two copies of the Acknowledgement of Receipt, along with a stamped, self-addressed envelope, to the other person by mail. You do not need to mail the Summary Sheet.
The other person should sign one of the Acknowledgement of Receipt forms and send it back to you in the self-addressed envelope within 20 days. Once you get the Acknowledgement of Receipt back, make a copy.
You will keep a copy of all of your forms and file the originals with the court, including the Summary Sheet and Acknowledgement of Receipt.
If there is a filing fee and you cannot afford it, ask the clerk for an Application to Proceed Without Payment of Fees and Indigency Affidavit (or find these fee waiver forms on our website), if you did not do that earlier.

Note: Instead of sending the forms by regular mail, you can hand deliver them. In either case, you need to get a signed "Acknowledgement of Receipt" form from the other party. If that person won't sign the form, get a Deputy Sheriff to serve the papers or try the certified mail option.

Option Two: Certified Mail, Restricted Delivery and Return Receipt Requested

Make two copies of your Motion to Modify and Child Support Affidavit, and one copy of your Summary Sheet. You do not need to send the Summary Sheet.
Take one copy of the Motion to Modify and Child Support Affidavit to the post office and ask to mail it “Restricted Delivery” to the other person, with a “Return Receipt” requested. The other person will have to sign for the package, and you will receive a Green Card back in the mail with proof of signature.
When you receive the Green Card back in the mail, make a copy. Then, take the originals of all of your forms, including the Green Card and Summary Sheet, to court, and keep the copies you made.
If there is a filing fee and you cannot afford it, ask the clerk for an Application to Proceed Without Payment of Fees and Indigency Affidavit (or find these fee waiver forms on our website), if you did not do that earlier.
The post office will charge you for this service.

Option Three: Service by Sheriff

Make two copies of your forms. Send the original and 1 copy of the Motion to Modify and 1 copy of the Child Support Affidavit to the Sheriff’s office in your county.
In a letter or in person, ask the Sheriff to serve the other person and give the Sheriff the other person’s home and work address, or any other information which would help the Sheriff find the other person.
After the Sheriff “serves” the other person, the Sheriff will complete page 3 of the Motion to Modify and return the original to you. Make a copy.
You can then file the original Motion to Modify, Child Support Affidavit, and Summary Sheet with the Court.
If there is a filing fee and you cannot afford it, ask the clerk for an Application to Proceed Without Payment of Fees and Indigency Affidavit (or find these fee waiver forms on our website), if you did not do that earlier. If you cannot afford to pay the Sheriff’s service fee (which may be over $30), you should file copies of your Motion to Modify and Child Support Affidavit with the court and request an Application to Proceed Without Payment of Fees and Indigency Affidavit. If it is approved, you can then take a copy of that order to the Sheriff, along with your other forms, for service, and the Sheriff should not make you pay.

Next Step after Service: File these papers with the court clerk

Motion to Modify (with "proof of service" section filled out, if served by sheriff)
Child Support Affidavit (if mutual children are involved)
Summary Sheet
Signed acknowledgement form, if the other party accepted service.
Green card from the post office, if you used certified mail service.

What if I can’t find the other party?

You may not be able to find the other party. If you have made all reasonable efforts but still cannot find them, the court may let you do Service by Publication. Ask the court clerk for a free Service by Publication forms packet. Follow the instructions on the cover sheet. This kind of service costs a lot. If you cannot afford to pay for it, find out how to ask for a fee waiver.

What if we agree to all of the changes?

If you and the other party agree to all proposed changes, you can use a special court rule to avoid going to court. Here are the steps:

1. Write out your agreement.

2. Both of you sign the agreement in front of a Notary Public or attorney.

3. File your signed agreement with your Motion to Modify (and all other required forms).

A Judge will review your agreement and decide if they can approve it. If they have any questions or concerns, they will tell the clerk to schedule a conference to talk about it. Both parties should come to court for that conference. If the court approves your agreement, the clerk will mail the new Order to both of you.

Note: On a Motion to Modify child support only, the clerk will wait, up to 30 days, to see if the other party files a response. If there is no response and the request is for equal or more child support, the court will likely grant your request. But, if the other party does respond, or you are asking for the support amount to be lowered, you will go on to "The Court Process: What to Expect."

What if I’m the one who got served with the papers?

If you receive the papers by regular mail:

Sign the Acknowledgement of Receipt form and mail it back to the sender so that it will reach them within 20 days of when they mailed it.
Then, file an Entry of Appearance form and a written response and file it with the court within 20 days of when you received the Motion. If the Motion was one to modify child support only, you have 30 days to respond and ask a hearing.
For any motions that involve child support, you must also file a FM-050 Child Support Affidavit.

If you receive the papers by certified mail or from the Sheriff, you must:

File an Entry of Appearance and written response with the court within 20 days of when you received the papers. You have 30 days to respond and ask for a hearing if the Motion to Modify is only about child support. For any motions that involve child support, also file an FM-050 Child Support Affidavit.

To prepare a response:

Copy the top part of the motion, identifying the court and the parties, onto a blank sheet of paper. Then label the paper “Opposition to Motion.”
Then answer the other party's statements that you don't agree with and explain why you think the court should reject the motion.
You will also have the chance to explain where you stand on issues at the conference, the mediation, and any formal hearings you may have.
Make sure you file the original with the court, mail a copy to the other person, and keep a copy for yourself.

You may also file a Counter-Motion. This just means there are things you want to change, too. If you are interested in this, include it in your written response and label your paper, “Opposition to Motion and Counter-Motion to Modify.”

Frequently Asked Questions

Q. If I got the motion papers in the mail from the other party, am I agreeing to everything in the papers if I sign and return the “Acknowledgment of Receipt” form?

A. No. By signing and returning the form, you are only agreeing that you got the motion papers. If you disagree with the motion, you need to file your written response with the court clerk within 20 days of the date you signed the acknowledgement form. (For a Motion to Modify Child Support, your request for hearing and written response must be filed within 30 days.)

Q: What if I don’t file a written response and Entry of Appearance?

If you don't file any kind of response—at least an Entry of Appearance form—the court can grant the motion by default, which means that the other person will probably get what they are asking for.

Motion to Enforce

You must give or send copies of the court papers to the other party before the court will hear your case. The forms packet you got from the clerk or online tells you how to do this. Follow the steps in Form FM-089 carefully.

You have three options for service:

Option One: Regular mail

Make two copies of your forms. Keep the originals and one copy.
Then, mail a copy of your Motion to Enforce, a copy of your Child Support Affidavit, and two copies of the Acknowledgement of Receipt, along with a stamped, self-addressed envelope, to the other person by mail. You do not need to mail the Summary Sheet.
The other person should sign one of the Acknowledgement of Receipt forms and send it back to you in the self-addressed envelope within 20 days. Once you get the Acknowledgement of Receipt back, make a copy.
You will keep a copy of all of your forms and file the originals with the court, including the Summary Sheet and Acknowledgement of Receipt.
If there is a filing fee and you cannot afford it, ask the clerk for an Application to Proceed Without Payment of Fees and Indigency Affidavit (or find these fee waiver forms on our website), if you did not do that earlier.

Option Two: Certified Mail, Restricted Delivery and Return Receipt Requested

Make two copies of your Motion to Enforce and Child Support Affidavit, and one copy of your Summary Sheet. You do not need to send the Summary Sheet.
Take one copy of the Motion to Enforce and Child Support Affidavit to the post office and ask to mail it “Restricted Delivery” to the other person, with a “Return Receipt” requested. The other person will have to sign for the package, and you will receive a Green Card back in the mail with proof of signature.
When you receive the Green Card back in the mail, make a copy. Then, take the originals of all of your forms, including the Green Card and Summary Sheet, to court, and keep the copies you made.
If there is a filing fee and you cannot afford it, ask the clerk for an Application to Proceed Without Payment of Fees and Indigency Affidavit (or find these fee waiver forms on our website), if you did not do that earlier.
The post office will charge you for this service.

Option Three: Service by Sheriff

Make two copies of your forms. Send the original and 1 copy of the Motion to Enforce and 1 copy of the Child Support Affidavit to the Sheriff’s office in your county.

In a letter or in person, ask the Sheriff to serve the other person and give the Sheriff the other person’s home and work address, or any other information which would help the Sheriff find the other person.

After the Sheriff “serves” the other person, the Sheriff will complete page 3 of the Motion to Modify and return the original to you. Make a copy.

You can then file the original Motion to Enforce, Child Support Affidavit, and Summary Sheet with the Court.

If there is a filing fee and you cannot afford it, ask the clerk for an Application to Proceed Without Payment of Fees and Indigency Affidavit (or find these fee waiver forms on our website), if you did not do that earlier. If you cannot afford to pay the Sheriff’s service fee (which may be over $30-$40), you should file copies of your Motion to Enforce and Child Support Affidavit with the court and request an Application to Proceed Without Payment of Fees and Indigency Affidavit. If it is approved, you can then take a copy of that order to the Sheriff, along with your other forms, for service, and the Sheriff should not make you pay.

Next Step after Service: File these papers with the court clerk

Motion to Enforce (with "proof of service" section filled out, if served by sheriff)
Child Support Affidavit (if mutual children are involved)
Summary Sheet
Signed acknowledgement form, if the other party accepted service.
Green card from the post office, if you used certified mail service.

If you cannot afford the filing fee, ask the clerk for an Application to Proceed Without Payment of Fees and Indigency Affidavit, if you did not do that earlier. Or get the fee waiver forms online.

What if I’m the one who got served with the papers?

If you receive the papers by regular mail:

Sign the Acknowledgement of Receipt form and mail it back to the sender so that it will reach them within 20 days of when they mailed it.

Then, file an Entry of Appearance form and a written response and file it with the court within 20 days of when you received the Motion. For any motions that involve child support, also file an FM-050 Child Support Affidavit.

If you receive the papers by certified mail or from the Sheriff:

You must file an Entry of Appearance and written response within 20 days of when you received the papers. For any motions that involve child support, also file an FM-050 Child Support Affidavit.

To prepare a response:

Copy the top part of the motion, identifying the court and the parties, onto a blank sheet of paper. Then label the paper “Opposition to Motion.”
Then answer the other party's statements that you don't agree with and explain why you think the court should reject the motion.
You will also have the chance to explain where you stand on issues at the mediation and any formal hearings you may have. Make sure you mail a copy to the other person and keep a copy for yourself.

Frequently Asked Questions

Q. If I got the motion papers in the mail from the other party, am I agreeing to everything in the papers if I sign and return the “Acknowledgment of Receipt” form?

A. No. By signing and returning the form, you are only agreeing that you got the motion papers. If you disagree, you need to file your written response with the court clerk within 20 days of the date you signed the acknowledgement form.

Q: What if I don’t file a written response and Entry of Appearance?

Motion for Contempt

Now you must serve the papers on the other party.

Remember, you have the original Subpoena, 2 copies of the subpoena and one copy of the Motion for Contempt, Order, and Summary Sheet (remember, your original Motion for Contempt, Order, and Summary Sheet are already filed with the court). If you got a Fee Waiver, make a copy of the Fee Waiver, too. Keep one copy of everything.
Give the original Subpoena, one copy of the Subpoena, and a copy of the Motion and Order to the sheriff for service. You do not need to give the Summary Sheet to the Sheriff.
In a letter, or in person, ask the sheriff's office to deliver the Subpoena, the Motion, and the Order to the other party. Give a home address. If you think the other party will be hard to find at home, give a work address or any other information you think will be helpful.
Remind the deputy that the papers must be served at least 10 days before the hearing date, unless the judge ordered a shorter time.
If you did not get a fee waiver, the sheriff's office will charge you for this service (about $15-$40 or more). If the Court gave you a fee waiver, give the sheriff a copy of the Court's Order so that you will not be billed for this service. If you need a fee waiver, you can find the fee waiver forms on our website.
After the sheriff sends the packet of papers back to you with the back of the original Subpoena filled in, make a copy of the signed Subpoena and file the original Subpoena with the court clerk.

What if I’m the one who got served?

If you are the person who got the papers from the sheriff and you oppose the motion, file a written response with the clerk at least 3 days before the hearing. Give or mail a copy of your response to the other party at the same time.

To find out what will happen next, read on. The following information about the Motion for Contempt applies to both parties.

The Court Process: What to expect

The Court Process: What to expect admin Thu, 05/21/2020 - 09:51

All of these motions are handled a little bit differently – there isn’t a one-size-fits-all roadmap for these motions. The way the court process will go from here really depends on which motion you use, and which court you are in. In this section, we will explain the most general steps. If there is anything you are confused about, the Judge, Magistrate, or one of the Court Clerks should explain the next steps in your case, and what your options are.

Note: It is possible that you could have your final hearing at your first court appearance, especially if it is a Motion to Modify Child Support and the responding person does not request a hearing. If it is possible, you should be prepared for your hearing on that day – with all of your evidence, and your witnesses, if you have any. If the court wants to hold a hearing, and you are not prepared, you could ask the judge or magistrate to schedule your hearing for a later date, when you will be able to have your evidence or witnesses there. This is called a “request for a continuance.” It is up to the judge whether to grant the continuance.

This video is about Portland District Court, but can be used for advice on other courts, too. It may help you get a big-picture idea of what to expect at court.

Before the Hearing

Each motion goes through a different process before a hearing. They are summed up below. However, because Motions to Modify and Motions to Enforce can have a similar process, be sure to read both sections if you have a Motion to Modify or Motion to Enforce. If you have a Motion for Contempt, you can skip down to the section on Hearings.

Motion to Modify

If you have kids, your first time in court will be an Initial Appearance with a Family Law Magistrate about your case. If you have kids, some courts may call it a Case Management Conference. If you do not have kids, the court will look at the papers that were filed and decide what to do. Here’s what to expect.

Before the initial appearance

About two weeks after you file your papers, the court clerk will mail both parties a notice. It will tell you where and when you will have your first meeting with the court's Family Law Magistrate.

If you are the person who was served with the motion, you will get the same notice, along with two court forms: an “entry of appearance” form and a child support affidavit (if child support is an issue). Fill out the forms and return them to the clerk before the conference, if you did not already when you filed your written response. Make sure you file your written response within 20 days of being served with it, or 30 days if it is a Motion to Modify child support only.

Finally, give or mail to the other party copies of all papers you file with the court, and keep copies for yourself.

To find out what will happen next, read on. The rest of this information applies to both parties.

At the initial appearance

Go to your initial appearance and be on time. The Family Law Magistrate will go over the issues with you. If you and the other party agree on how your judgment or order should be changed, the Magistrate can sign a court order to make those changes. If you can’t agree, the Magistrate will probably order you to go to Mediation.

In some courts, you could go to Mediation on the same day as the conference. Be prepared to pay the $70 per person mediation fee at this initial appearance. If you cannot afford this, you may ask for a fee waiver. You can get the fee waiver forms from the clerk, or get fee waiver forms from our website. If you do not have Mediation that day, after the conference, the clerk will set the time for the Mediation. Be sure that it is a time when you can be there.

The Magistrate's order will also say what issues still need to be resolved and when the next steps will happen.

If the only issue involves child support, the Magistrate may hold a formal hearing and give a final order that same day.

Make sure you bring proof of income, like your pay stubs, your tax returns, or a letter from your employer about your income. Bring copies of your and your children’s health insurance costs or information, or childcare costs or information. Also bring any existing orders in the case, or any other information you think is relevant.

TIP: Read all court notices carefully, and bring to court all the documents that you are asked to bring.

After the initial appearance

If the Family Law Magistrate gives a final order when you meet with him or her, and you disagree with the Family Law Magistrate’s order, you may object in writing. You must include an affidavit that sets out the relevant facts. File your objections with the clerk and give a copy to the other party.

The filing deadline is 21 days from the date the clerk entered the order on the court docket (usually soon after the Magistrate signed the order). Then a Judge will review the Magistrate's order and your objections. If you do not file a written objection, the order will become final.

Note: If the Magistrate issues an interim order (a temporary decision, until the case is decided), you cannot appeal it. That order stays in effect until the Magistrate or Judge gives a final order.

Motion to Enforce

In cases involving children, a Judge may send the parties to meet with a Family Law Magistrate for an Initial Appearance, similar to the process above. The Judge may instead simply send the case to Mediation or schedule the case for a formal court hearing.

If your case does not involve children (for example, you are asking the court to enforce a section that ordered the defendant to pay for a debt or for spousal support), the judge will move your case in one of two directions:

Mediation, or
Formal court hearing

Motion to Modify and Motion to Enforce

Mediation

Your experience with mediation may be different depending on how complicated your case is, and the court you are in. This is general information about how mediation for a Motion to Modify or Motion to Enforce will work.

Fees

If you are sent to Mediation and there is a mediation fee, you will be asked to pay the fee before the Mediation – if you were at an Initial Appearance, the Family Law Magistrate will tell you when to pay it, or it will be written on an order. If not, the court will tell you when to pay. If it does not, come to Mediation with the $70 fee. If you can't afford the fee, ask for a fee waiver. You can get the forms for this from the court clerk, or get the fee waiver forms from our website.

It is possible in some courts that there will be a mediator available on the date of your first court appearance. If you don’t have many issues to resolve, and you are able to work it out quickly, you may not be charged for Mediation.

What to expect at mediation

At the Mediation, the mediator will ask you to explain your problems with the other party. The mediator will also try to help you reach an agreement if you can. You have to mediate in good faith—which means you have to be open to coming to an agreement—but you don't have to agree to anything that you believe won't work or is unfair.

The mediator will meet with each party privately at the beginning of the session. If you have been abused by the other party or you are afraid, talk to the mediator about this in the private meeting. You can ask to be in a separate room during the mediation.

If you still disagree on any issues by the end of the Mediation, you will be sent back to the Judge or Magistrate. If you do agree on any issues, you will sign a written agreement, which will also go back to the Judge or Magistrate. If they approve your agreement, they will write an order. The order will change your original judgment or order to follow your agreement.

Q. Do I have to go to mediation if I am afraid of my spouse or former partner?

A.The court may waive mediation "for extraordinary cause." For example, if you think trying to mediate will trigger abuse or memories of the abuse, you may ask the court to let you skip mediation. You can ask the Magistrate to do this in person at your first court meeting.

Or you can ask at any time in writing. Send a letter to the court or file a more formal motion. Explain what has happened to make you afraid of the other party. If you include a sworn affidavit, you must sign your affidavit under oath in front of a notary public. Attach a copy of your Protection from Abuse Order (PFA), if you have one. File these papers with the court clerk. The clerk will ask the Judge to look at them and decide whether or not you will have to mediate.

If you get to mediation and you are still afraid, ask the mediator to talk to you in private about your concerns. The mediator can allow you to stay in separate rooms. In extreme cases, the mediator can decide that mediation won’t work, or can stop mediation after it starts if someone is or feels threatened.

We encourage people affected by domestic violence to try to get a lawyer. A good first step may be to contact your local domestic violence program: 1-866-83-4HELP.

Motion to Modify, Motion to Enforce, and Motion for Contempt

At the Hearing

If you and the other person cannot reach an agreement at the Initial Appearance or during Mediation, the court will hold a hearing.

This is a formal court hearing. The Judge or Magistrate will hear each side. You can testify for yourself (tell your story to the Judge or Magistrate), bring witnesses, and present documents. There are rules for what kind of things a person can testify about or what kinds of documents the court can look at. These rules will be followed, so you may want to try to get a lawyer if you can.

To prepare for the hearing, plan what you need to say.

Be ready to tell the court what has happened. If you filed a Motion to Modify, be ready to explain:

The substantial change in circumstances that caused the need for a change in your court order.

If you brought a Motion to Enforce, be ready to explain:

How the other party has failed or refused to follow the court order.

If you brought a Motion for Contempt, you should be ready to explain:

How the other party has failed or refused to follow the Court's order; and

How the other person has the power or ability to follow what they are ordered to do (obey the order).

You will need to show that your proof is correct by a “clear and convincing” standard. This is a high standard of proof, so you should carefully prepare your evidence and what you plan to say;

If you are opposing a Motion to Modify, be ready to explain:

Why the prior Order should not be changed
Why there has not been a “substantial change in circumstances”

If you are opposing a Motion to Enforce or Motion for Contempt, be ready to explain:

How you have followed the order; and/or
Reasons why you aren’t able to follow the order

Tips to keep in mind

You may want to make a list of the major facts and points you need to make.
If you know people who have first-hand knowledge of important facts, you can ask them to testify at the hearing. If a witness is unable or unwilling to come to the hearing, you can subpoena them (see below for how to subpoena a witness).
If the other party objects, the Judge can’t rely on a letter, or even a sworn statement, from a witness that isn’t there because that is considered to be “hearsay”. The only way you can be sure that a Judge will consider your witness’s statements is by having that person come to the court hearing to testify.
At the hearing, you will be given a turn to tell your side of the story. You will also have the chance to ask questions of the other party and any other witnesses. The Judge or Magistrate may ask you or others questions. Since you do not have a lawyer, the Judge or Magistrate may help you by explaining court procedures or the law. But they must be neutral and cannot give you or the other party legal advice.
After the hearing, the Judge or Magistrate will give a final order. You may get the order that day or later by mail.

Q. How do I subpoena a witness?

A. Go to the clerk and ask for a subpoena form (this is different from the Contempt Subpoena you need to fill out to file your case). The form costs $5.00, unless you got a fee waiver. Fill out the form. Make two copies of the form. Give the original and one copy to a responsible adult, asking them to hand-deliver the copy to the witness. You cannot serve your own subpoena.

You must pay the witness a fee. The fee is $10.00 plus mileage, at the rate of $.22 per mile for each mile to and from court from the witness’s home. Give this amount to the person who is serving the subpoena for you. They must give it to the witness with the subpoena. At the time of service, the adult server should fill out the section on the back of the original form, explaining when and how the copy was given to the witness. Bring that original subpoena with you to the court hearing.

Think twice before subpoenaing a witness who does not want to testify or who is against you. You may get testimony that is untrue or that is not helpful to you.

After the Hearing

If your hearing was with a Magistrate and you disagree with any part of the order, you can file written objections. Deliver or mail this to the clerk and send a copy to the other party. The deadline for filing objections is 21 days from the date the clerk entered the order on the court docket (usually soon after the Magistrate signed the order). Then a Judge will review the Magistrate’s order and your objections and give a final order. If you miss this 21-day deadline, you lose your right to appeal or object.

The deadline for appealing a Judge’s final order to the Maine Law Court is 21 days after the clerk enters the order on the docket (usually soon after the Judge signs the order). File your notice of appeal, an order for the transcript you want to use in the appeal, a statement of issues to be decided on appeal, and the fee (unless you get a Fee Waiver) with the District Court clerk. You will probably need a lawyer to help you go forward with an appeal. If no one files an appeal, the order becomes final in 21 days.

Both you and the other party are responsible for following the final order. All of the terms of your original judgment or order, except those that were changed by the new order, are still in effect.