Thursday, April 3, 2014

Does Divorce Hurt Children?

When parents are considering the D-word, they may have many fears, concerns and questions:  How will I afford a divorce?  How often will I see my children?  Where will I live? Will the divorce hurt my children?  

For most parents this last question can be so concerning that it causes them to put off their divorce.  Even when a divorce is inevitable parents are often paralyzed by their fear of how the divorce may impact their children, especially when the children are young.  This fear is warranted because many parents significantly damage their children's mental health by how they divorce and how they manage their relationship after the divorce.

A recent thread on Reddit highlighted the question:  Reddit Children of Divorce, what was the biggest thing you learned from your parents split and how did you end up?

Many of the responses are both heartbreaking and insightful:

Excerpt from AskReddit

Split, a recent film, also explored this issue from the perspective of children ages 6-12:

Fortunately, divorce doesn't have to be this way.  With the availability of films like Split and the recent release of Sesame Street's: Little Children, Big Challenges: Divorce Toolkit, there are many resources available to help parents minimize the impact of divorce on their children.

While the divorce process necessarily involves the division of a financial and emotional partnership, the most important impact divorce will have on both the day-to-day family life and the long-term family legacy begins with how the children perceive and react to the divorce.  Parents who want to put their children first should know that divorce all begins with how they choose to divorce.

How do the different divorce options treat children?

Divorce in Court: If parents choose to litigate their divorce case by filing a Complaint in court, the first information the court asks them to exchange is financial information.  Either parent can ask the court for temporary orders that define a parenting plan and, if they cannot agree, the court will tell them both when they spend time with their children and sometimes even how to communicate about their children.

While the court's mandate requires consideration of the "best interest of the children", the court orders are directed at the parents, not the children.  In most of these hearings, there is no person in the courtroom specifically advocating for the children.  While one might presume the parents are advocates for their children, their interests may not always align with the children's best interest.  In addition, court is confusing and stressful, and most people have trouble focusing on their own needs, nevermind fully understanding the needs of their children.

The most glaringly obvious example of this disconnect, is the complete lack of one major component from any court order.  I have been practicing in the divorce field in Massachusetts for almost 10 years and I have never seen a court order address how the parents should tell their children about their divorce.  Practically it make sense that the court would not get involved in this level of detail.  But consider the importance of that conversation to the child, especially now that a temporary order exists telling that child that on certain nights they can't see one of their parents.  Take a moment and try to imagine how that feels to a child.  What if I told you right now that you can't call or visit your Mother on Tuesdays?  Even as an adult, how hurtful and confusing would that be?

Divorcing outside of Court:  There are options for reaching agreements to divorce outside of court and many of these options offer the opportunity to put your children first.

Mediation involves two people hiring a neutral trained mediator to help them reach an agreement.  Many people choose co-mediation with both an attorney and practitioner with some other skill set, such as a child specialist or divorce coach.  While the attorney mediator helps focus on the legal issues that divorcing couples face, the mediator who has training in child development and communication skills assists parties in finding the best ways to co-parent their children.

Because divorce is primarily seen as a legal division, the needs of the children can get lost in the legal requirements.  Having a mediator who helps parents focus on their children's needs, can create the opportunity to discuss issues such as how the parents will tell their children about the divorce.

Collaborative Divorce is another out-of-court settlement option that provides parents with the expert assistance needed to address the needs of their children and themselves in a healthy way.  Collaborative Law is a form of alternative dispute resolution where both parties in a dispute have their own attorney, but those attorneys agree not to go to court and instead work on settlement in meetings with a Divorce Coach.  The Divorce Coach is someone who likely has training in child development and communication skills to help address the co-parenting relationship now and in the future.

I often tell clients and potential clients that divorce with children should not be about breaking up a family, but simply restructuring it.  Collaborative Divorce is a team approach to that restructuring using the skills of everyone in the room to build a new family dynamic.

Ultimately if a parent wants to divorce in a way that minimizes the damage to their children this is the take-away message:

A healthy divorce with children requires finding ways to 
still be a family while living in separate households.

Here are some resources that parents in divorce might find helpful in accomplishing this goal:

Wednesday, April 2, 2014

Temporary Alimony is Distinct from General Term Alimony - According to SJC

In September of 2011, the Alimony Reform Act was signed into law in Massachusetts, and it took effect on March 1, 2012.  We've previously summarized the many changes that this Act brought to Massachusetts Alimony Law: The New Massachusetts Alimony Law in a Nutshell. 

As with many new laws, though, it raised as many questions as it answered.   Now that this law has been around for two years we are starting to receive answers to some of those questions from the Appeals Court and SJC.

One of these questions was whether temporary alimony orders count against the duration of general term alimony orders which begin only after a final Judgment.  The new alimony law contains duration limits in M.G.L. c. 208 § 49, which create a presumption that alimony ends at a certain time based on the length of the marriage.  For example a marriage of between 15 and 20 years, could have alimony as long as 80% of the length of the marriage.  For a marriage of 15 years this would mean alimony could last up to 12 years.  Beyond that, the court would have to make a written finding "that deviation beyond the time limits of this section are required in the interests of justice."

In many cases, however, alimony doesn't typically begin after a Judgment but instead usually begins at the Temporary Order stage of litigation.  Most cases take six to twelve months to resolve by agreement, and even longer when litigated to trial.  It is not unusual for a case to take two years from the date of filing before a trial is held, if the parties are not able to settle the matter.  If temporary alimony doesn't count against the duration of general term alimony, then the length of time a case is pending could add years to the ultimate length of time alimony is paid.

Should temporary alimony be included in the duration limits for general term alimony?

Today, the SJC answered this question in a decision on the Holmes v. Holmes case (SJC-11538, 2014, available here).   The SJC answered definitively:
"We conclude that temporary alimony is separate and distinct from general term alimony, and that the duration of temporary alimony is not included in calculating the maximum presumptive duration of general term alimony."
But also gave trial judges a way out:
"We also conclude that, where temporary alimony is unusually long in duration or where the party receiving temporary alimony has caused unfair delay in the issuance of a final judgment in order to prolong the length of time in which alimony may be paid, a judge in her discretion may consider the duration of temporary alimony in determining the duration of general term alimony."
In the Holmes case, the trial judge had not subtracted the two years and three months that temporary alimony had been paid by the husband to the wife from the twelve year duration that she was ordering the husband to continue paying.  The husband appealed and the SJC agreed with the trial judge.

In the SJC's discussion they point out that trial judges are not required by the statute to order alimony for the maximum duration and can, without a finding, use their discretion to limit alimony for a shorter period of time.  However, a written finding is required to exceed the maximum duration.  The SJC also points out that the Alimony Reform Act does not amend the temporary alimony statute: M.G.L. c. 208 § 17.  The SJC weighed all of this to show that the intention of the legislature was not to include temporary alimony in the duration limits of general term alimony.

The husband's best policy argument was that the trial judge's interpretation would encourage recipients of temporary alimony to delay the divorce process.  The SJC believed that a "a spouse who acts in this way does so at his or her peril because, as noted earlier, a judge in her discretion may order that general term alimony terminate before the presumptive maximum duration."  While this doesn't necessarily address the husband's practical concern it does encourage practitioners to point out to judges that the maximum duration is not necessarily the appropriate duration.

Footnote Tidbit (if there's anything I learned in law school, it's that appeals courts love to put important information in the footnotes):

Footnote 9 addresses the fact that this decision was made in a post-divorce Modification Judgment, and not in the original Judgment.  The wife argued that the duration limits didn't apply to her case in which the divorce was decided prior to the Reform Act because the husband would not have been allowed to request that the court amend the duration until after September 1, 2015 (pursuant to a stepped filing provision in the Act).

The SJC points out, however, that the husband didn't file the first Complaint for Modification, but only responded to the wife's request to increase support.  Since the modification wasn't "'solely because' the husband sought to limit the duration of alimony", the judge could address the duration issue before September 1, 2014.    This would seem to open the door for payors (of 15 to 20 year marriages) to try and limit duration prior to September 1, 2015 if they also make a claim that the amount of alimony should change due to a change in circumstances.  It should also be a warning to recipients filing a Modification that opens that door.

Tuesday, February 25, 2014

Practical Tips for Completing the Massachusetts Family Court Financial Statement

A financial statement is required in every divorce, paternity, and child support action in Massachusetts.   The financial statement is one of the most important papers that you will file with the Court.  A financial statement will be required every time you appear in Court when there is an issue relating to finances, and you must sign your financial statement under the pains and penalties of perjury that the information contained in the financial statement is complete, true, and accurate.

In a divorce case, Massachusetts Supplemental Probate Court Rule 401 provides that, within 45 days after the date of service of the Summons, each party must serve on the other party a complete and accurate financial statement.  Rule 401 also allows the parties to make a request for financial statement as well.

The form of the financial statement which each party must complete is dependent upon his or her income. A party whose income equals or exceeds $75,000.00 must complete the long form financial statement. The long form financial statement should be printed on purple paper (although the Standards for Computer Generated Forms indicate both should be on pink paper, the long form available at the courthouse is on purple paper).  A party whose income is less than $75,000.00 must complete the short form financial statement.  The short form financial statement should be printed on pink paper.  The short form financial statement is also available in Spanish and Portuguese.
Warning: Unless you have Acrobat Standard or Pro you won't be able to save any information you enter on these electronic court forms.  If you enter information and save the document in Acrobat Reader (the free adobe program most people have on their computer), all of the entered information will disappear when you reopen it.  We therefore recommend that you print the document immediately after you complete it, or simply print the blank document and work on it by hand.
Many people find these forms confusing, and the court has provided some basic instructions for both the short form and the long form.  In addition to these instructions, we have found that the following tips have been helpful to our clients:

Documents: When completing the financial statement it will be helpful if you have certain documents available to refer to.  Collecting all of these documents before you begin drafting will make the process easier:

  • most recent (or a representative) paystub;
  • your last year's tax return with accompanying schedules, W2s and 1099s;
  • most recent statements for your bank accounts, retirement accounts, investment accounts, credit cards, loan statements, etc.;
  • any appraisals or other valuations for your property; and
  • a budget of your average weekly expenses.

Weekly Expenses:  Everyone has some weekly expenses that do not fit into the listed categories (e.g. cable, internet, netflix, etc.).  Create a realistic budget for what you are spending regularly or your financial statement will not accurately reflect your financial situation and won't be as useful.

Assets:  List anything of value that you may have interest in, even if there isn't a listed category for it (e.g. frequent flyer miles, or digital assets, such as the value of your iTunes library).  In addition, it is advisable to list your marital interest in your spouse's property to ensure that you have reserved your rights to that property.  This can be indicated by one line in the "Other" category: "Equitable Interest in Marital Property of Spouse - Value Unknown".

Trusts:  Any trust interest (as trustee or beneficiary) should be listed with an explanation of the interest.  Trusts are often misunderstood or misinterpreted and if you are not 100% clear on what your interest in a trust may be, you should consult an attorney regarding the terms of the trust.

Schedules:  If you work for yourself, you must additionally complete Schedule A.  If you own any rental property, you must additionally complete Schedule B.  If these schedules don't match your most recent tax return, expect questions as to why.  Judges are mandated reporters to the IRS and DOR, and you may be required to explain why the income and expenses you are reporting to the court doesn't match what you reported (also under oath) to the IRS and DOR.

How accurate do you have to be?  Very Very Very accurate.  Remember, you are signing your Financial Statement under the pains and penalties of perjury that its contents are complete, true, and accurate.  If there are any inaccuracies or untruths, you may be asked about it in Court, which could hurt your credibility and therefore your case.  In addition, any inaccuracies could affect the enforcability or modification of agreements.

Footnotes/Endotes:  Sometimes the form doesn't allow the room for you to completely and accurately describe a specific situation.  In that case, include a footnote or endnote and write an explanation at the end of the document.  This is not a situation where less is more.  Anything that is confusing or incomplete could be considered inaccurate or misleading.

Is a Financial Statement confidential?  Financial Statements are impounded, which means that they are filed separate from your court file, which is public record.  Your Financial Statement is only available to you, your attorney(s), the opposing party, and his or her attorney(s), after showing a proper ID.  We recommend that when you file a Financial Statement, you redact all but the last four digits of your Social Security number and account numbers to ensure further privacy.

Tuesday, February 18, 2014

Enforcing Parenting Agreements – What happens when the Plan Fails?

"I think a plan is just a list of things that don’t happen.”– Parker in The Way of the Gun
Often when negotiating a parenting plan with clients, I point out that the actual written plan doesn’t dictate what happens.  It’s just a piece of paper.  Even when the court enforces the agreement that process takes time, effort, evidence, follow-up, and more time.  When both parents agree to guidelines for co-parenting that make sense to both of them, then they are more likely to end up with an actual plan that everyone buys into.   When parents can’t agree the result is typically a Judgment or Divorce Agreement that results in more litigation in the form of Modification actions, Contempt actions and Appeals.

One such case was recently remanded to the trial court by the Massachusetts Appeals Court on a 1:28 decision.  The case involved a Complaint for Modification, Cross-Complaints for Contempt and Cross-Appeals.   While the issues being appealed are numerous, one issue in particular highlights the problems with enforcing a parenting plan when it doesn't work.

The Process for Enforcing a Parenting Plan:

M.G.L. c. 208 Section 31 defines legal and physical custody and requires that the court make a determination of both if the parties are unable to agree.  If the parties agree then they must submit a written agreement to the court.  In addition to defining custody, divorce agreements (sometimes called separation agreements) will typically include a parenting schedule and provisions relating to communication and notification.

For example, in this recently appealed matter, the separation agreement included provisions relating to communication between the parents during illnesses of the children, major decisions concerning the children’s upbringing and their general well-being.  These types of provisions are typical and, when followed by parents, they create a co-parenting relationship that encourages both parents to remain involved in the day-to-day life of their children.  But what happens when these provisions are not followed?

What is the remedy for a damaged relationship with your child? How can the court go back and fix that?  

When a contract provision requires that one party pay the other party $1,000 and that provisions is violated, the solution is obvious.  If you spend any time in a district court, you will see that the majority of cases in small claims court are exactly these types of cases: credit card companies suing over non-payment of debts.  The resulting agreement or judgment involves simply a plan for making the payment or executing against some asset of the debtor.

The remedy for non-payment is obviously payment.  But what is the remedy for missed parenting time? What is the remedy for a damaged relationship with your child? How can the court go back and fix that?

The Failures in the Process:

In this Appeals case, the father alleged violations of the communication provisions (among others) that stretched over six years, and is criticized in the mother’s brief for waiting to bring these allegations.  This is a catch 22 for the father.  If he brings a Complaint for Contempt every time the mother fails to communicate with him, they would always be in court (probably with Complaints from both sides).  On the other hand, if he waits until it becomes a pattern, he is criticized for waiting too long.

According to the father’s brief, despite the father demonstrating numerous violations, the trial judge indicated that he found “no basis upon which to find any contempt” by the mother.  The trial judge also expressed frustration at the lack of remedies the court might have to resolve the conflicts in communication presented by the father:
“… I can go up on the roof of the courthouse now and say on the… matter, the parties shall cooperate with one another, right?  But I recognize that I’m a judge.  I’m not the king, OK?  I am simply a Judge.  I can’t make things happen.”
This is a sentiment that is often discussed in the family court, because regardless of what the judge orders, parenting plans are difficult to enforce.  The violations are extremely fact specific, often relying on he-said/she-said testimony, and there remains the issue of when and how often should these issues be raised to the court.  But does that mean that there is no remedy available?

As the father argues in his brief, if the court approves the Agreement and finds it to be fair and reasonable, thereafter incorporating the agreement into a Judgment, it should be enforceable.  There has to be some remedy available to a party if he can prove that there has been a violation.

The father argues that the need for a remedy is not just about justice and fairness, but required by Article 10 and 11 of the Massachusetts Constitution’s Declaration of Rights.

Article 10 reads in part:
"Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty and property, according to standing laws."
and Article 11 reads:
"Every subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely...; completely, and without any denial; promptly, and without delay; conformably to the laws."
If the trial judge abused his discretion on the facts by not finding any violations by the mother, then the father is right that there has to be a remedy.  The law requires it.   For now, the Appeals court avoided this issue by remanding the case back to the trial judge requiring that the judge provide findings of fact on both the father and the mother’s Complaints for Contempt.  While this is not a loss at the Appeals level it represents another significant delay for both sides in seeing any remedy out of the court.

Finding a Remedy:

When teaching an associate how to prepare for a trial or motion hearing, I always advise them to first write their proposed judgment or order.  Once you know what you’re looking for, then you can figure out the rationale for why you should receive that result.  Then you can figure out what facts you have to prove to support that rationale.

The father in this appeal indicated in his brief that he asked the judge, among other things, to hold the mother in contempt and to order the mother to attend parenting counseling.  If the judge holds the mother in contempt on remand that might have felt like a moral victory to the father, but in practicality that holding alone would not be a remedy for any communication issues.  In many cases parties seek attorney’s fees or monetary sanctions for violations of non-monetary provisions to at least show the violating party that there are consequences.  However, monetary punishment won’t undo damage to a parenting relationship either.

The suggestion by the father that mother attend parenting counseling would at least have the potential to improve communication for the future.  However, it still won’t fix the problems created by the past failures to communicate.  In fact, there is no one hundred percent satisfactory remedy to undo damage to a parental relationship.

Regardless of the result of this matter, their children continue to grow older and time marches on.  Hopefully, the trial court on remand can fashion a remedy that is better than none, but regardless of the result the real lesson is one for other parents; these types of cases are cautionary tales of how the system is broken and may always be broken, at least when it comes to enforcing parenting plans.

Finding a Better Remedy:
“I love it when a plan comes together”
– Colonel Smith The A Team
In many cases the parents are only working to resolve the conflict right in front of them and the litigation process encourages this short-sighted resolution by only addressing specific and immediate conflicts.  The litigation process is designed for parties with a singular conflict that they were unable to resolve themselves, but parenting is not a one-time relationship.

It is possible, however, for parents to avoid the problem with unenforceable agreements and come to a plan they can both buy into.  To reach that consensus takes more than lip service during negotiation.  It requires that the parents be willing to have difficult conversations before the problems arise.
Parents don’t always have to agree what is best for their children to still agree that they both want the best for their children.
Parents can find ways to resolve parenting conflicts more effectively in the future by making use of professional’s experience about the types of problems that arise coupled with honest evaluations of the communication problems that are likely to occur between the parents.  This is not easy work, but parenting is not supposed to be easy.

One of the reasons I practice both Mediation and Collaborative Divorce is because litigation leaves little room for an honest parent-to-parent conversation about working together towards common goals.  When parents can’t have that conversation, a parenting plan is just a list of things that won’t happen.

Tuesday, February 11, 2014

What the Heck is Bitcoin?

Bitcoin is a digital currency that is widely considered only for the tech-savvy and crazy libertarians.   At Kelsey & Trask, P.C. we've been accused of both of those, so why not own it!

As of today, Kelsey & Trask, P.C. will be accepting Bitcoin as payment, in addition to cash, check and credit cards.

If you're a Bitcoin user and a client of K&T, then you simply have one more option to pay your bill.

If you don't know what the heck Bitcoin is, then we suggest you check out this recent video from Mashable:

Everything You Need to Know About Bitcoin in 2 Minutes

We've previously written about the dangers and benefits of paying for your Divorce (or other legal services) with a credit card, and many of those concerns may also apply to your Bitcoin wallet.  The key (no pun intended) with any new technology is to understand it before you dive in.  But if you buy into the idea (okay, that pun was intended), then we're ready and willing to work with you!

Thursday, February 6, 2014

Will Pot Smoking affect a Custody Determination?

Unrolled Joint
(Public Domain Image courtesy of Wikipedia)
Medical Marijuana has been legalized in Massachusetts and  possession of one ounce or less, even for "recreational" use, has been decriminalized.  In addition, marijuana for recreational use has been legalized in two states in 2013, and more may be on the way.

Traditionally, illegal use of marijuana by a parent could result in DCF involvement and would definitely be a factor considered by a family court if two parents were disputing custody in a divorce or paternity action.  Although many parents did not see "what the big deal was", judges would often test for marijuana use and restrict parenting time for parents that tested positive.

Does the national shift towards legalization for both medicinal and recreational use mean that smoking pot should no longer be a factor in determining fitness for custody?  

In an article written by Henry Gornbein when states began legalizing medicinal use, Henry wrote for the Huffington Post on this issue and made the analogy to alcohol use or abuse.

While alcohol is legal to purchase and drink, depending on your age, there are still legal restrictions.  It is not legal to drive when drunk, and a parent who is drunk during their parenting time could be considered neglectful or unfit.  If a parent has a serious alcohol problem, many judges will even order supervised or limited visitation with that parent.  This is an appropriate analogy for how family court judges are likely to view marijuana use.

Even for medical use, and even in states where recreational use is legalized, pot smoking is likely to still carry with it some common sense restrictions.  While the effects may be different than alcohol, the use of a mind-altering drug, whether an illegal drug or a legal one, can affect a parent's ability to care for their children effectively.  A family court must consider the best interest and safety of the children and how marijuana use could affect that standard of care.

While results will likely vary greatly from case to case, as with alcohol abuse, it is clearly advisable for parents to avoid the use of marijuana, even if prescribed by a doctor, when children are in their care.  Despite the shift towards legalization, it is likely that the use of marijuana will continue to affect custody and parenting time determinations in family courts.  

Friday, January 31, 2014

Harassment Prevention Orders - 2 SJC Decisions

On January 28, 2014, the Massachusetts Supreme Judicial Court released two decisions that significantly affect the ability to obtain a Harassment Prevention Order in Massachusetts.

Harassment Prevention Orders in Massachusetts are governed by M.G.L. c. 258E, which defines Harassment as follows:
“Harassment”, (i) 3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property...
In Smith v. Mastalerz (SJC-11011039. January 28, 2014 - available here), the SJC clarifies what constitutes 3 or more acts.  The trial Judge found that the Defendant driving by the Plaintiff three times all within a short period of time counted as 3 separate acts.  However the SJC disagreed "with the judge that driving by the plaintiff constituted three separate acts of harassment."  In addition, the lower court had not made specific findings that convinced the SJC that the act of driving by was "wilful and malicious, directed at the plaintiff, intended to cause, and in fact did cause, fear, intimidation, abuse, or damage to property."

In Smith, the SCJ is sending a clear message that they are looking for lower court findings in Harassment Prevention Order cases to include three distinct incidents temporally, as well as clear findings that the alleged incidents were malicious and willful.  This requires more than an inference and will likely require more work by Plaintiffs to obtain these orders.

In another decision published on the same date, the SJC further addressed the issue of malicious intent.  In Seney v. Morhy (SJC-11399. January 28, 2014 - available here), the SJC overturns a lower court's harassment prevention order even though it had already expired.  First, the SJC points out the importance of deciding appeals of these cases, even if moot for the future of that case, because the issue could continue to arise but avoid review due to the temporary nature of these cases.  In addition, if the order never should have issued that will affect the record keeping on that matter.

After addressing that procedural issue, the SJC turned to the actual incidents in this case which involved alleged harassment by a parent of an assistant little league coach.  In particular, one of the alleged incidents was an e-mail sent to the head coach that berated the assistant coach.  The SJC decided that the e-mail did not meet the standard for Harassment because "it was not directed at him and was not motivated by cruelty, hostility, or revenge."

Read in conjunction with the Smith case, the SJC is telling the trial court that harassment requires malicious intent and harm.  That is more than just a mean e-mail, and this heightened standard must be applied to each alleged incident specifically.   Two incidents of clear harassment and one mean e-mail still won't be enough to meet the statutory definition of harassment under these two decisions.

Practice Tip:  As the Plaintiff in a Harassment Prevention Order case it might be tempting to simply present three incidents that make the case, even if there are more.  However, if any one of them doesn't meet the standard you are only left with two incidents.  To avoid a dismissal, if there are more than 3 incidents you should present every incident that constitutes harassment.  Then, even if the record isn't sufficient on one incident that won't result in a dismissal so long as there at least 3 sufficient incidents.

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