Thursday, January 8, 2015

Let the Judge Decide! - The End of Conflict or Just the Beginning?

"Let the Judge Decide!"  

How often have I heard that in my career as a divorce attorney and mediator?  Too many times to count.

In many cases, when a spouse or their attorney feels that they are unable to reach an agreement with the other side, they simply decide to put the issue to the Judge.  After all, that's the Judge's job.  The whole reason we have a civil legal system is to resolve disputes in a civilized way between adults, but that system is far from perfect.

Have you really been told the truth about what it means to "let the Judge decide?"

The Probate and Family Court as a division of the trial court is an (almost) free service available to all members of the public over whom they have jurisdiction.  They will not provide you with a free attorney in most cases, but there are free law libraries throughout the state, and the court will provide you with the necessary forms and an interpreter if you have the need.  If you have a civil dispute, such as a divorce, and are unable to reach an agreement, the Probate and Family Court is a resource that can help you reach a decision.  You have every right to "let the Judge decide" for you, but:

You may not like the resolution or the process.  
In fact you probably won't.

The Probate and Family Court system is a one-size fits all system.  Treating everyone equally has both advantages and disadvantages.  Be prepared for long lines and overworked court staff.  The process of resolving your case may not seem like rocket science, but you are not the only case they have to resolve.  The Massachusetts Probate and Family Court had 156,531 total cases filed in fiscal year 2014.

Middlesex County alone had almost 5,000 divorce and related cases filed in that same year (and 26,092 total cases).  That might not seem like a lot of customers in one year, until you realize there are only eight judges in the Middlesex County Probate and Family Court and they will have to see all of those cases at least once.  In addition, the contested cases will have multiple hearings and many of the cases from previous years are still open.

In our experience, the Judges genuinely try hard to give every person in front of them a fair chance to be heard and to make a reasonable decision.  But practically speaking, they can't give that many cases close attention.  You do have a right to a trial, and a right to have a Judge decide an issue if you believe that your ex is being unreasonable, but don't be fooled into thinking the Judge will make that decision with all the relevant information.  There just isn't enough time.

In order to serve as many people as possible the court is forced to apportion rough justice and hope that it's good enough.

Rough Justice is not good enough for families.

We recently posted about a heartbreaking case in which a father, who the court admitted was an abuser, was granted custody of his children.  That may seem like a crazy result, but reading the full decision it was obvious how hard a case it was, and how difficult it was for the trial court and the Appeals Court to come to that decision.  While we agreed that the court may not have had a better choice under the law, the family certainly had better options for resolving their disputes.  Extended litigation only put the children of that family at higher risk of abuse, regardless of which household they were in.

The Judge's best option is rough justice because they are limited by the law and time.  They will not hear all the facts of your case.  Some relevant facts are excluded by the rules of evidence, and many more will be excluded because they just don't have enough time to hear it all.  You may believe the Judge would agree with you if they knew everything you knew, and you might even be right, but the Judge will never know everything you know about your case.

Even if the Judge agreed with you, the law limits what the Judge can order you to do, while your options in dispute resolution are practically endless.  For example, even if a parent coordinator might be a great option in your case, recent case law suggests that a Judge can't assign a Parent Coordinator over one party's objection.  You've not only limited the possible solutions by letting the Judge decide but you've also accepted that a stranger with imperfect information will make a decision about the future of your unique family situation.

Maybe, though, in your case rough justice is good enough.  Maybe, you're thinking that at least it's some justice and at least it will be an end to the conflict.  After all, many people just want their divorce case over, before it even starts.  Unfortunately:

It's not over when a Judge decides.

Almost every final decision from a Judge (and even some temporary orders) can be appealed.  That means multiple appellate Judges will second guess the decisions of the first Judge.  It means more time, more money, more frustration, and ultimately if they disagree with the first Judge, it means starting all over again.

One excellent example of this problem is a 2014 Rule 1:28 decision, Sibert v. Sibert, in which the Appeals Court reversed the property division, alimony and attorney's fee awards of the trial court.  Essentially the parties were being sent back to the first Judge to do almost everything over again.  The primary reason behind the Appeals Court's decision to remand these issues was the failure of the trial Judge to provide adequate findings to rationally support the decisions.  As lawyers, we're use to hearing these types of legal explanations for an appeals court handing a case back to the trial Judge, but to a client it must seem absurd.

The higher court is essentially saying the lower court didn't do their job well enough.  The decisions might even be right, but the Judge didn't write enough of their work down so they can't tell if the solution is correct.   How many people would say "let the Judge decide" if they understood what they were really saying was "let the Judge decide, and then if we don't like it we'll let some other Judges decide if this Judge needs to decide again, and so on..."

Since, many people can't afford an appeal, you may think that an appeal is a low risk and not worth worrying about in your situation.  But wait, there's more:

Even once a decision is final, it probably isn't over.
Modification and Contempt:

In your personal experience are people more likely to complete a task when they agree to do it or when they're told to do it?  It's human nature to rebel against a decision or order we believe is unfair.  Probate and Family Court orders and judgments are no exception.

Divorced spouses who reach an agreement will sometimes fail to live up to that agreement, or seek to make changes.  After all we can't predict everything.  However, the odds of returning to court are much higher if you let the Judge decide the first time and it should be obvious why.  If you needed the Judge to tell you one thing, why not everything?

In 2014, there were 18,291 Contempt cases filed and 31,788 Modification cases filed in the Massachusetts Probate and Family Court.  That's 50,000 times someone wasn't happy with their prior judgment, in 2014 alone, almost one third of all the cases filed in 2014.

Not only do those cases split the Judges attention even further, they demonstrate a failure of the system to work in the first place.  Letting the Judge decide is not just a choice about the current issue in front of you right now, but it is also a choice about how you will decide all future issues.

A Better Way to Resolve Conflict?

While many people are only aware of one way to get divorced, there are in fact many different ways to complete a divorce in Massachusetts.  Because of the legal nature of a divorce, and the media portrayal of high profile court battles, many people aren't aware that court doesn't have to be your first stop in a divorce.  In fact, your divorce might be a lot more efficient, civil and cost-effective if court is your last stop.  Collaborative Law and Mediation are just two of the processes by which you can resolve a divorce case before going to court.

Even when settlement seems impossible, dispute resolution processes offer many tools and resources to help you find long-lasting solutions.  If you are able to resolve all of the issues through a dispute resolution process and reduce them to a written agreement, then you will avoid having a Judge make important life decisions for you.  More importantly, you might just set the tone for how you and your ex-spouse resolve any future disputes.

Wednesday, January 7, 2015

Appeals Court confirms Survived Agreements are not Modifiable, even under the Alimony Reform Act: Lalchandani v. Roddy

This post written in collaboration with Jason V. Owens, Esq. of Stevenson & Lynch, P.C.

The Appeals Court recently decided another alimony modification case, Lalchandani v. Roddy (AC 13-P-1988), but don't get excited.  The case doesn't contain any revelations.  The issue presented in Lalchandani v. Roddy is whether a husband who has reached federal retirement age can seek to terminate his alimony obligation, despite a survival clause prohibiting modification in a divorce agreement, where the parties subsequently agreed to reduce the husband's alimony after the divorce.  In this case, the flaw in the husband’s argument was easy to spot: the modification agreement that the parties entered after the divorce also contained a survival clause that prohibited any further reduction in the alimony unless husband becomes “totally disabled such that he is completely prevented from working”.

Since, the Alimony Reform Act is quite clear that surviving alimony provisions cannot be modified under the Act, the only real issue in the case was whether the survival clause in the judgment was ambiguous.  Unsurprisingly, the Appeals Court found that the “total disability” clause in the modification agreement was clear and enforceable, and denied the husband’s request to terminate alimony on the sole basis of his age. (Husband did not allege that he was totally disabled.)

Frankly, it is somewhat surprising that the Appeals Court elected to publish this opinion, given the narrow scope of the decision.  Even more interesting, the Appeals Court flagged the bigger issue that the SJC is now working on: namely, whether the duration limits on alimony set forth in the 2011 alimony reform act apply to any alimony orders pre-dating the effective date of the act, March 1, 2012.  In Lalchandani v. Roddy, the Appeals Court flirts with deciding whether modification of alimony orders under the alimony act are strictly prospective, stating, “it is true, as the husband points out, that the act provides that general term alimony orders terminate upon a payor attaining full retirement age …” However, the Court pulls back at the last second in Footnote 9, explaining that the Court “need not” determine “whether the act is prospective only” as a general matter, since the Court was able to resolve the case on other grounds.

We'll have to continue waiting for a decision on the three outstanding SJC cases for guidance on whether the Act can modify alimony on pre-Act agreements and judgments.

Stay tuned!

Thursday, January 1, 2015

How does a second job affect child support or alimony?

In Massachusetts, both the child support guidelines and the alimony statute address second job income.  One key question for both child support and alimony is determining when the additional income started.

The definition of income for both child support and alimony starts the same.  M.G.L. Chapter 208 Section 53b states (with some limitation) that income for determining alimony shall be defined as set forth in the Massachusetts child support guidelines.  The child support guidelines define income as "gross income from whatever source regardless of whether that income is recognized by the Internal Revenue Code or reported to the Internal Revenue Service or state Department of Revenue or other taxing authority."  The guidelines then go on to list numerous types of income that would be included.

In the child support guidelines, second job and overtime income are addressed immediately after the definition of income and start with the presumption that the income is included.  The court can include or exclude all or some of the additional income even if it was earned prior to the initial order, but if the court excludes it they have to consider certain factors "including but not limited to the history of the income, the expectation that the income will continue to be available, the economic needs of the parties and the children, the impact of the overtime on the parenting plan, and whether the extra work is a requirement of the job."  Essentially this means the Judge has broad discretion, but starts with the presumption that the income is included unless these factors weigh against that presumption.

Second job or overtime income that starts after the initial order, however, is treated differently:
"If, after a child support order is entered, a Payor or Recipient obtains a secondary job or
begins to work overtime, neither of which was worked prior to the entry of the order, there shall be a presumption that the secondary job or overtime income should not be considered in a future support order."
This encourages people to supplement their income without being punished for it, which makes sense.  In addition, this is only a presumption which could be overcome if, for example, the payor was underemployed in the first place and this second job really just brings them up to a more appropriate base income.

Because the standards for determining an amount of alimony vary from those for determining child support, the second job income's affect on the payor's "ability to pay" could result in a different determination than the findings required for including or excluding second job income for child support calculations.  However, there is a presumption in both cases that if the income starts after the initial order, then it is not included.  This issue was specifically addressed as to an alimony modification by the Appeals Court in the recent Vedensky decision.  

Visit our main site for more information on alimony, child support or modifications.

Tuesday, December 30, 2014

6 Lessons on Alimony Modification from the Appeals Court

The Massachusetts Appeals Court released a decision on December 30, 2014,  Vedensky v. Vedensky (13-P-1392), deciding numerous issues related to the determination of alimony on a modification.  The Appeals Court upheld most of the lower court's decision except on one issue, including the payor's second job income, which caused the award to be remanded to the lower court.  This continues a trend in recent alimony cases for the Appeals Court and SJC to look very closely at awards of alimony under the still relatively new Alimony Reform Act.

In Vedensky, the wife and husband entered into a Separation Agreement in 2007 that included the husband paying child support to the wife and no present alimony, but the issue of future alimony was left modifiable.  After suffering from psychological disabilities that affected his ability to work, the husband sought a reduction of his child support in 2009 on a Complaint for Modification, which obligation was terminated in a 2010 judgment.  Then in 2011, the husband filed a new Complaint for Modification seeking alimony.  The lower court ordered $635 per week in rehabilitative alimony for 104 weeks.  The Appeals Court overturned the decision.

Here are some of the lessons that can be taken from the Vedensky decision:

1. The first modification proceeding regarding child support doesn't reset the clock on modification.

The wife argued that the lower court should have considered the change in circumstances from the first modification in 2010 and not from the divorce judgment in 2007.  The Appeals Court disagreed indicating that parties "are not required to pair every complaint for modification of child support with an alimony request."  That incentive would clearly be against public policy.

2.  Judges are given great discretion in evaluating expert testimony.

The wife argued that the lower court erred by failing to consider expert testimony regarding the husband's ability to work.  The Appeals Court however gave great deference to the weight given by the lower court to the expert testimony and how it related to the husband's disability.

3. The Judge can use SSI disqualification regulations to determine earning capacity.

The wife argued that the lower court erred in how it determined the husband's earning capacity by relying on the disability disqualification regulations for SSI and indicating that the husband could earn up to that amount.   According to the Appeals Court this was not error and it was consistent with the lower court's order that the husband undergo therapy, which was intended to increase the likelihood of a return to full-time work.

4.  Clear findings by a Judge can support an award that exceeds current need.

The wife argued that the lower court erred by awarding the husband alimony above his needs.  The lower court specifically outlined that the increase above his stated need was for the anticipated cost of treatment, which was necessary to comply with the court's order.  The Appeals Court reiterated the considerable discretion given to the lower court, especially when the award "flowed rationally from the findings and rulings."

5. There is a Presumption against including a new second job in an alimony modification.

According to the Appeals Court neither party addressed the statutory provision related to second job income (Section 54b) in their appellate briefs, but the issue so concerned the Appeals Court that they asked for post-argument submissions on the issue.  The Appeals Court considered the issue important enough to raise on their own because of the specific statutory reference in Section 54b:
"[i]ncome from a second job or overtime work shall be presumed immaterial to alimony modification if: (1) a party works more than a single full-time equivalent position; and (2) the second job or overtime began after entry of the initial order." 
Since the wife took a second job only after the entry of a judgment of divorce "the presumption of immateriality applies to income earned from her second job."  The Appeals Court therefore overturned the alimony award and remanded the issue to the lower to make findings relating to this issue and a new award of alimony taking into account this presumption.  The Appeals Court points out that the presumption may be rebutted if there are sufficient findings in the lower court, which unfortunately for the parties will likely require a further evidentiary hearing.

6.  It only takes one issue for a decision to be overturned on appeal.

In Vadensky the lower court did almost everything right according to the Appeals Court, and the parties failed to raise the second job issue to the Appeals Court.  Despite all of that, it only took this one oversight and a thorough appellate review to return these parties back to square one.  This is a downside of litigation that is seldom discussed with parties at the beginning of a case.  The only sure way to avoid further litigation is to reach a settlement.  Even winning at the trial level can be overturned by the appellate division.

Given how lengthy this modification process has already been for the parties, we hope they are encouraged to consider mediation as an option before returning to the lower court for another round of litigation.

Visit our main page for more information about mediation or alimony.

Monday, December 29, 2014

A Chance to Share your Divorce Experience: “…AND I JUST WANTED YOU TO KNOW”

A colleague shared with us her idea for writing a book on divorce comprised of actual letters written by ex-spouses to their former partners.  Recently one such letter went viral and another colleague of ours pointed out the wisdom that could be gained from this type of correspondence.

We think this type of a collection has great potential for informing both divorcing spouses and the professionals that assist them, and we want to support Vicki Shemin, J.D., LICSW, ACSW, of the Boston Law Collaborative, in her efforts.  If you are divorced, or know someone who is, please consider responding to the below inquiry or passing it on to those who may be interested:


Dear Prospective Book Participant:

I write to invite you to participate in a unique educational opportunity.  I am writing a book that will be a collection of actual letters to ex-spouses from individuals such as yourself.  These are not necessarily copies of letters that were ever sent to your ex-spouse, but are more likely to be letters you would be writing now - for the first time (which you may choose never to send), expressing to your ex-spouse what you “just wanted them to know” as you reflect back upon your marriage, divorce, and all that has followed.

My hope is that engaging in the actual introspection and writing of this anonymous letter will not only prove cathartic to you, but will serve as a tremendous contribution to the professions of psychology, law, theology and medicine - as therapists, family lawyers, clergy and psychiatrists have much to learn from the vantage point of your experience.

There is no page length, no direction you “should” take – other than to write from the heart. Although the letters will be published anonymously, it is impossible to guarantee that someone will not recognize your letter or claim to recognize your letter; therefore, you may wish to modify certain distinguishing factors (e.g., any  geographical locales identified; any names used or professions referenced; or, number/gender of any children mentioned). That said, I am requesting that, along with your letter, you complete a survey: for purposes of the survey, please be 100% accurate and honest in your responses since this part of the book will be used for educational purposes.  More specifically, I intend to subcategorize the letters into various chapters based on interesting variables such as how long couples had been married, whether they had children together, and whether either ex-spouse subsequently remarried.

Here is how to proceed:

1.         Please note that all letters MUST start the same way:  “…and I just wanted you to know”

2.         Please feel free to write your letter on any stationery or via any medium you prefer (be it handwritten, via email, fax, etc.)

3.         Please complete the SurveyMonkey survey found here.

4.         Here is the tricky part:  I need to be able to connect your “surveymonkey” responses to your letter!

a.  Take the surveymonkey online and then simply print out the completed survey and transmit it to me - along with your letter - via email, fax or U.S. mail.

b.  If you are unable to print out a copy of the survey to return with your letter, then when you send me your letter, please tell me the exact time and date you transmitted the surveymonkey and tell me some “identifying” information about one of your survey answers that will help me connect your letter and the survey.  [For example: “Vicki - I sent you the surveymonkey on December 21, 2014 at 8:42 p.m. and replied in #10 of the survey that ‘my ex-spouse is a wonderful woman who loved her job more than she ever could have loved me.’ ”]

c.  Here is how to get BOTH the LETTER & THE SURVEY back to me (via email, fax, or U.S. mail):

Vicki L. Shemin, J.D., LICSW, ACSW
c/o Boston Law Collaborative, LLC
99 Summer Street, Suite 1600
Boston, MA 02110
Tel: (617) 439-4700 ext. 210
Fax: (617) 439-0700

* Please remember: If you do not send both your letter and survey to me together, then please let me know via separate communication that your letter and your survey are uniquely linked by some identifying information so that I can connect them for research purposes.  Please feel free to let me know if you have any questions or concerns.



Monday, November 17, 2014

What is Conciliation? How is it different than Mediation?

In a Conciliation a neutral private attorney, sometimes appointed by the court, assists parties in assessing the strengths and weaknesses of their case and exploring options for resolving the matter without going to trial.  Conciliation is similar to mediation in that the two parties are working with a neutral person who is attempting to help them reach an agreement. However there are some key differences:

  • If attorneys are involved in the case, they are usually present for conciliation. Often attorneys don't participate in a mediation.
  • Conciliators can, and often will, provide an opinion or assessment of each party's arguments.  While this may assist the parties in settling, it is different than mediation where the neutral avoids making assessments which could favor one party or the other.
  • While a mediator can be a mental health practitioner, financial expert or other non-attorney professional, a conciliator is an attorney because of the legal experience necessary to provide an assessment.
  • Conciliation usually takes place while a litigation case is pending, while most people seek mediation before litigation begins (although mediation can be used during litigation as well).
  • Finally, conciliators may be required to report back to the court if appointed by the court, while mediation is completely confidential and privileged.
Many of the Massachusetts Probate & Family Courts have conciliation programs in which the court will appoint a free conciliator to work with the parties at their request. In those programs, the conciliator agrees to provide a minimum of two hours and tries to assist the parties in settling without a cost. This Court appointed conciliation requires a report to be filed with the court.

Attorney Justin Kelsey has taken the conciliation training and can be appointed through the court in Norfolk and Middlesex counties as your free conciliator or you can choose to hire Attorney Kelsey directly. By paying for the conciliation you receive some additional benefits. Your time is not limited as with the court program, and we can work on your case until it settles. In addition, we will work around your schedule to accommodate you and your attorneys. Finally, you get to choose your neutral professional by reputation instead of being randomly assigned the next conciliator on the list.

Click here to learn more about mediation and conciliation offered by Kelsey & Trask P.C.

Friday, October 31, 2014

Court Awards Custody to Abusive Father. Still Think Court is Safer than Mediation?

The Massachusetts Appeals Court published a decision today in a particularly saddening and difficult divorce case in which the lower court awarded custody to a father despite a finding that the father had been physically abusive to the mother.  The job of a trial Judge is not an enviable one and I don't intend to second-guess the decision which included weighing the testimony of two experts and was very fact specific.

In reading the full decision it is obvious the court was forced to choose between two extremely undesirable results. The trial court relied on the children's problems with their mother and abuse between them and her in awarding primary custody to the father.  The Appeals Court points out that the GAL and children's therapists could not find any evidence that the father brainwashed or alienated the children from the mother.  However, the court acknowledged that the children witnessed abuse by the father against the mother, and pointed out the harm suffered by those who witness domestic violence.

The court's decision and these principles seem incompatible.  Unfortunately though, it is obvious that no matter the decision made by the court it would have been an imperfect one.  It is possible that the children will be in danger of witnessing or being involved in further domestic violence regardless of which parent was awarded custody.  Not only did the court process fail to ensure the protection of these children, the stress and animosity created by the process probably increased the risk.

Sometimes the court just can't solve these types of problems effectively.  The mother in this case most likely spent a fortune to have a parent alienation expert testify for no benefit.  What if the mother had engaged that expert for a different purpose?  What if the mother had engaged that expert to help her fix her broken relationship with her children, regardless of the cause?  What if these parties had tried mediation or collaborative law instead of litigation?  

While it is important that the court exists as a last resort for obtaining protection for victims of domestic violence, this case is the perfect example of how the court only has imperfect solutions to offer families.  It is my hope that rather than continue to litigate after receiving this Appeals decision the family in K.A. v. T.R., and others like them seek the help of experts (divorce coaches, parent reunification experts, mediators, etc.) to help them seek solutions that are better than what the system has offered them.

October is Domestic Violence Awareness Month and it is ironic that on the last day of October this decision is published.  Victims of domestic violence need to be aware of the resources available to them such as the Domestic Violence / Sexual Assault Agencies and Hotlines in Massachusetts.  In addition, Awareness should include knowledge about the options that victims have besides court, options which ultimately might serve their and their children's needs better.  If you doubt that mediation or collaborative law could have done better in this case, I invite you to read the entire decision in K.A. v. T.R. and comment below.

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