MEMORANDUM TO LITIGATION PARTNER

MEMORANDUM TO LITIGATION PARTNER FOR HARRY

The basic conclusions of this memorandum dealing with the case of Harry v. Sally are that Harry has a strong case on the substantive issues in the case, but faces procedural barriers which must be overcome if he is to avoid enforcement of the outstanding support order and if he is to prevail in his action against Sally and Joe. He has a reasonable chance of succeeding, providing the Probate and Family Court is prepared to accept the logical policy premises which underlie the law in the Commonwealth of Massachusetts, as it applies to this matter.

1. Harry and Sally were married in 1989 and divorced in 1992. Sally was pregnant with little Harry at the time they were married and failed to apprise Harry until 1993 that Joe was little Harry's natural father. Harry was ordered at the time of the divorce to pay $75 per week in child support for little Harry. At some time in 1993 or later, the fact that Joe was the natural father was established through blood and genetic marker tests. The facts of the case are unclear on this point but it is assumed that Harry and Joe took those tests pursuant to an administrative proceeding before the Department of Revenue (DOR). Harry stopped paying child support after he learned he was not the natural father.

2. Sally and Joe were married in 1994. Joe adopted little Harry. Since Sally's welfare case was closed out in 1994, it is assumed that Joe has the financial capacity to suppor

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duty to do so generally should not be punished if he or she should abandon it." The Court indicated that circumstances might exist, such as a pattern of detrimental reliance by the wife or the child on a husband or ex-husband, which caused them to lose the opportunity to pursue the natural father for support and which might, therefore, oblige the ex-husband to continue providing support. Sally was not precluded by any action of Harry from seeking support from the natural father whom she eventually married. Procedural Barriers and Possible Strategies to Overcome Them As noted above, it is assumed that the blood and genetic marker tests were taken pursuant to a state administrative proceeding. Under ch. 119A, secs. 1 and 3, DOR is entitled to issue an order for child support on behalf of DOW which is subrogated to Sally's rights to the support payments. Under ch. 119A, DOR is designated as a Title IV-D agency under Title IV, Part D of the Social Security Act, 42 U.S.C.A. 651-667, and may use any collection "methods which are available to private parties," including the interception of state and federal tax refunds; however, under U.S.C.A. sec. 664(a)(3)(A), it is required to give the obligor notice of its impending tax refun

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