Monday, September 15, 2014

MA SJC Rules on Parent Coordinator Orders: Asks Probate Court to make a Rule

In the case of Bower v. Bournay-Bower, the Massachusetts Supreme Judicial Court has ruled that Judges in the Probate and Family Court cannot grant a Parent Coordinator binding authority over the objection of one of the parties.  However, the SJC went much further then necessary in order to open the door for what might be the "appropriate circumstances" to order a Parent Coordinator.


In Bower, the SJC summarized the trial judge's order as requiring a parent coordinator to:
"hear the parties' current and future disputes regarding custody and visitation in the first instance, before the parties could file any action regarding these disputes in court. The order also granted the parent coordinator the authority to make binding decisions on matters of custody and visitation and provided that these decisions must be complied with by the parties as if they were court orders unless one of the parties were to go to the court before the decision was to take effect and obtain a contrary order." - Bower
This order was made after multiple cross complaints for contempt were filed regarding the adherence to the parenting plan and legal custody requirements of the parties' divorce judgment.  The SJC recognized the usefulness of parent coordinators, but found that the order in this case "exceeded the bounds of the judge's inherent authority and was so broad in scope that it constitutes an unlawful delegation of judicial authority."

In their discussion, the SJC points out that
"Despite the increasing use of parent coordinators in Massachusetts, the specific functions of a parent coordinator, including the parent coordinator's duties, necessary qualifications, or scope of authority, have not been set forth by statute or court rule. "- Bower
Due to the court's broad inherent equitable powers the SJC did conclude that judges have the authority to appoint parent coordinators in "appropriate circumstances" and indicated some bounds that might be "appropriate":
"Therefore, probate court judges possess the inherent authority to refer parties to a parent coordinator in appropriate circumstances in order to conserve limited judicial resources and aid in the probate court's functioning and capacity to decide cases, or if in the judge's discretion such referral is necessary to ensure the best interests of the children in a divorce- or custody-related proceeding." - Bower
However, this authority must be limited and was exceeded in this case: "A judge's inherent authority does not extend to compelling a party to submit to the binding decision-making authority of a parent
coordinator without that party's consent."

The SJC was also concerned that the order in this case put off a decision on the existing pending contempt complaints and limited the filing of future claims.  Both of these exacerbated the due process concerns.

There is very clear language from the SJC that "a judge in the Probate and Family Court possesses the inherent authority to refer parties to a parent coordinator."  And also that they are not limiting the right of parties to agree to the use of these services.  If there is agreement, then the issue is easy, but even without agreement, the SJC is indicating that parent coordinators may be useful so long as the judge is careful not to give up too much of their own authority.

Therefore, the SJC asks the Probate and Family Court to promulgate a rule governing the appointment of parent coordinators to help ensure appointments address these and other concerns that the court has over training, favoritism in appointments, etc.  While a lengthy decision, Bower finally brings us some clarity on the SJC's position regarding Parent Coordinators.  Now, the Probate and Family Court can give parents even more clarity by creating the Rule the SJC has asked them for.


Thursday, August 7, 2014

Collaborative Law Intro Training 2014

Kelsey & Trask's Justin Kelsey will be one of the presenters at the upcoming 2014 Collaborative Law Training:


presents an Introduction to Collaborative Law Practice 2014:

An Interdisciplinary, Interactive, Step-by-Step Training 
to Offer A Better Approach to Conflict Resolution.

This is a three day introductory training taking place on September 11, 12 & 13, 2014 which will proceed step-by-step through the collaborative process. The program is designed for social workers, psychologists, and other licensed mental health professionals, financial professionals, family law attorneys and civil law practitioners.

This training meets the International Academy of Collaborative Professionals (IACP) standards for trainers and interdisciplinary training.



Wednesday, August 6, 2014

A Lecture in Myanmar

For 9 days this past July, Valerie Kua, an associate at Kelsey & Trask, P.C., had the opportunity  to visit the Republic of the Union of Myanmar (formerly Burma) through the Seed of Hope Foundation.  As part of this visit, on Friday, July 18, Valerie presented a lecture on the American legal system at the University of Mawlamyine.

Myanmar is the second largest country in Southeast Asia bordering Laos, Thailand, China, Bangladesh and India.  Then known as Burma, Myanmar became an independent nation in 1948 and has spent much of that time in civil war.  Today Myanmar is one of the poorest countries in Southeast Asia, though the recent lifting of economic sanctions has given the country new opportunities for growth.

The University of Mawlamyine is the third largest university in the country, with approximately 8,000 undergraduates.  Two hundred University professors, lecturers and students attended Valerie's Introduction to the American Legal System lecture, where she explained the process for admission to legal practice in the US, the American court system, the American litigation process, and alternative dispute resolution.

This trip was a unique opportunity for Valerie to meet students and professionals from a very different legal system from ours and to share information about the American legal system.


Friday, August 1, 2014

Rehabilitative Alimony: 7 More Lessons from the SJC

The Massachusetts Supreme Judicial Court has released another opinion that addresses some of the questions still surrounding the Alimony Reform Act of 2011. Zaleski v. Zaleski - SJC 11391 (2014).

In Zaleski, the Appeals Court addressed four primary issues in the lower court's decision:
  • Rehabilitative Alimony ordered instead of General Term Alimony - AFFIRMED
  • Husband's bonus income not included in alimony amount calculation - REMANDED
  • Wife ordered to maintain life insurance for her child related obligations - REMANDED
  • Property Division not exactly equal - AFFIRMED
We've summarized the take-away points from this decision:

1. Trial Judges have even more DISCRETION now

Footnote 13 confirms what many practitioners have been saying about the new Act:  
"The legislative history clearly shows that the broad discretion judges historically have had in making awards of alimony was not affected by the Alimony Reform Act of 2011, St. 2011, c. 124 (alimony reform act). Indeed, the Legislature appears to have viewed the creation of the four categories of alimony as providing greater discretion to judges." Zaleski (emphasis added).
Essentially by clarifying that there are four types of alimony, the SJC believes that the legislature has given the trial judges great discretion in deciding the best type of alimony to fit the facts of each case.  In this case, that question surrounds the difference between rehabilitative and general term alimony.

2. All of the Relevant Factors from § 53(a) Must be Considered when determining the TYPE OF ALIMONY

In this case, the lower court very extensively identified the factors in § 53(a) thereby limiting the ability of the SJC to disturb the lower court's discretion.  

3.  Rehabilitative Alimony vs. General Term Alimony is about the predictable potential for self-sufficiency, and DOES NOT REQUIRE A SPECIFIC EVENT OF SELF-SUFFICIENCY 

The primary difference in effect is that Rehabilitative alimony has a default five year limit and in this case general term alimony could have lasted thirteen years.   The Wife, in an effort to extend her alimony award, argued that rehabilitative alimony required a finding that "a specific event in the future" would occur where she would become self-sufficient.  The SJC agreed that the Wife had provided good examples of this type of event: "completion of job training or a medical residency, passing a licensing examination, or graduation from a specific educational program."  However, the SJC disagreed that the trial court was limited to these types of specific events:
"However, we conclude that, in some circumstances, the potential of future reemployment may provide a basis for deciding that rehabilitative, rather than general term, alimony should be awarded." Zaleski.
It seemed relevant to the SJC in their evaluation of the lower court's findings on this issue that the Wife had not shown "reasonable diligence" in searching for new employment.

4.  NEED is a RELATIVE term

The lower court ordered the alimony amount as 35% of the Husband's base salary of $400,000, but failed to clearly identify why the Husband's bonuses were not included (which varied but had resulted in some years with a total income over a million).  The SJC points out that where an award is necessary under general term or rehabilitative alimony, the award "must reflect the parties' marital lifestyle"

"Because 'need' is a relative term for purposes of the act, it must be measured in light of mandatory considerations that include the parties' marital lifestyle."  Zaleski.

This is consistent with a recent Appeals Court 1:28 decision that we previously posted about.

5. OVERSPENDING may negate a marital lifestyle that exceeds the 35% limit

The Wife argued that the 35% award was not sufficient to meet the marital lifestyle, but the SJC supported the limitation based on the lower court's findings that the parties, despite their significant household income during the marriage, overspent.  This is interesting in that the SJC is willing to let a Judge second guess marital lifestyle of the parties, while at the same time requiring that the marital lifestyle defines need.   Once again, this confirms that good findings will give trial judge's significant discretion.

6. BONUSES should be included, UNLESS...

The Act defines income to include all income as defined by the Massachusetts Child Support Guidelines which clearly includes bonuses.  The lower court therefore erred by not including bonuses.  However, the SJC didn't go so far as to say that the lower court order was vacated on this issue.  The SJC left the door open for lower court's to exclude bonuses by how they remanded this issue:
"Because the alimony amount was not calculated on the basis of all of the husband's income, as required by the statute, and because the finding that the wife agreed that the husband need not pay child support was erroneous, we are unable to conclude that the amount of alimony was determined after due consideration of all of the statutory factors." Zaleski.
The SJC is essentially saying that the interplay of child support in this case, specifically "no child support order" and the Husband's paying all of the private school costs, might be a factor in excluding some of his income, for instance his bonuses, from the alimony calculation.  However, they are remanding this issue because the lower court's findings were not consistent enough with this potential reasoning.

7. DEBT during SEPARATION is probably SEPARATE DEBT

The Wife also challenged the property division on what the SJC seemed to think was a little too meticulous of an accounting and also on the significantly unequal debt division ($75,519.04 to Wife and $26,200.71 to Husband).  The SJC pointed out that $57,000 of the Wife's debt was credit card debt incurred by her alone while the Husband was paying the costs of the home and giving her cash.  While presumably the Wife felt that the temporary arrangement was not sufficient, the SJC's unwillingness to second guess this issue highlights the importance of temporary orders.  Whatever the temporary order was, the SJC is not going to look to redo an accounting for the period of separation.


Thursday, July 24, 2014

Can Alimony continue past Retirement in Massachusetts under the new law?

Part of the significant ground-swell of support for a change to Massachusetts alimony laws came after the Pierce decision, which ordered alimony to continue past retirement.  While a quick reading of the new alimony statute might lead you to believe otherwise, there are a number of scenarios in which alimony could (and in many cases) will still continue past retirement age.

The Alimony Reform Act of 2011, which became effective on March 1, 2012 provides for multiple types of alimony, and for maximum amounts and duration of alimony.  Any alimony orders that were in effect prior to March 1, 2012 will be considered General Term Alimony, and the Act included duration limits for General Term Alimony that we described at length in a previous post.

One of the limitations on duration is contained in M.G.L. c. 208 s 49(f) and indicates that the court SHALL terminate alimony "upon the payor attaining the full retirement age."  Full retirement age is defined as when he or she is eligible for the old-age retirement benefit under the United States Old-Age, Disability, and Survivors Insurance Act, 42 U.S.C. 416, typically between 66 and 67 (a full retirement age calculator is available here).

However, the Court has discretion to extend "an existing alimony order for good cause shown; provided, however, that in granting an extension, the court shall enter written findings of (i) a material change of circumstance that occurred after entry of the alimony judgment; and (ii) reasons for the extension that are supported by clear and convincing evidence."

While this second part of section 49(f) certainly opens the door for a Judge to extend alimony past full retirement age for good cause shown there are two requirements which the recipient would have the burden of proving.  These two requirements require some unpacking:

1. To extend there must be written findings of a material change of circumstance that occurred after entry of the alimony judgment.

This would seem to require that the recipient must show that something significant has changed or the order should end.  In other words, if the parties are still earning the same amount of income and have similar health and other expectations as they did at the time of the judgement of divorce, then alimony should end upon reaching full retirement age.

That outcome might be considered unfair in situations where parties (and Judges) assumed under the old law that alimony would continue into retirement, especially if one party received more of the retirement assets or had substantial additional earnings during the separation.  However, it is unclear from the statute, if any of these issues would be relevant as they do not represent a material and significant change in circumstances.

There has been no guidance yet from the Appeals Court (as of the writing of this blog post) regarding this type of case.  In the Green case the Appeals Court dealt with the first part of section (f) which allows the court to deviate on the issue of post-retirement alimony at the time that the initial alimony order is created. One quote that might be relevant from Green, if a trial Judge was looking for some leeway in deciding whether to extend alimony past full retirement age, has to do with looking closely at the property division at the time of the divorce:
"the Act does not depart from the long-standing principle that alimony and property division are 'interrelated remedies that cannot be viewed apart..."  Green at 1109.
Of course, without more guidance from the Appeals Court it is unclear if this applies to cases where that property division happened prior to the enactment of the Alimony Reform Act.  On first impression, it would seem that the second part of section 49(f) would ignore the relation of the property division at the time, and limit the inquiry to any material and significant change in circumstances since that time.

Practically, in most cases that are well past their original judgment, a material and significant change in circumstances may not be that difficult to prove.  For example, if the recipient has reached retirement age as well, then their income has likely been reduced.  This could be enough to satisfy the requirements of the statute.  It would all depend on the trial judge's opinion (and possibly thereafter the Appeals Court's opinion) of whether this constitutes "good cause shown."

2. To extend there must be written findings that the reasons for the extension are supported by clear and convincing evidence.

This section appears to place the burden on the recipient to show by "clear and convincing evidence" that there has been a change as required by the first clause, and that the change represents a good reason for extending alimony.  This likely requires that the recipient prove, all over again, that there is a need and ability to pay.  While clear and convincing evidence may sound like a significant burden on the recipient the reality is that if the recipient is dependent on the alimony income, and the payor still has the ability to pay (which will often be obvious from a financial statement), then this burden is not that difficult to establish in many cases.

Upon a close reading, while the burden is placed on the recipient to prove their case by "clear and convincing evidence" part (2) of section 49(f) seems to take a lot of the teeth out of the language that alimony SHALL terminate upon the payor reaching full retirement age.  This language will have significant impact on decisions going forward, but it remains to be seen how much judges (and the Appeals Court) will be willing to apply it to cases that were decided before the Act was enacted.


Wednesday, July 23, 2014

Can the Court order less than the 30-35% formula for Alimony in Massachusetts?

The Alimony Reform Act of 2011 added a formula to Massachusetts Alimony determinations:
"Except for reimbursement alimony or circumstances warranting deviation for other forms of alimony, the amount of alimony should generally not exceed the recipient’s need or 30 to 35 per cent of the difference between the parties’ gross incomes established at the time of the order being issued. Subject to subsection (c), income shall be defined as set forth in the Massachusetts child support guidelines."M.G.L. c. 208 s 53(b) (emphasis added)

Mathematical formulas are convenient and many practitioners and Judges are running the formula right away to see what the boundaries of alimony are (we've even encouraged this behavior with the creation of a website calculator and iPhone App).  But the recent decision in Hassey indicates that the formula should not be the first step in the alimony inquiry.

The formula should not be the first step in the alimony inquiry. 

When running the formula two numbers are generated: 30% of the difference in the parties' gross incomes, and 35% of the difference in the parties' gross incomes.  At this point it might be tempting to argue that a fair compromise is 32.5% of the difference in the parties' gross incomes.  This might be a fair and reasonable resolution in a case IF alimony is warranted by the facts of the case, but that is a big "IF".

Which leads us to the question: Can the Court order less than the 30-35% formula for Alimony in Massachusetts?

The answer based on close reading of the language of the statute is clearly YES!  There are three scenarios where the court can order less than 30% of the difference in gross incomes:

Scenario 1. No Need - In Hassey the Appeals Court pointed out that the "Act altered neither the fundamental purpose nor the basic definition of alimony: 'the payment of support from a spouse, who has the ability to pay, to a spouse in need of support.' G.L. c. 208, § 48."  Hassey.   The Appeals Court has clarified that the formula (despite its convenience) is not the first inquiry in a case. The first inquiry remains whether or not there is a need for alimony and an ability to pay.

In addition, the formula states that "the amount of alimony should generally not exceed the recipient's need..."  So the first inquiry should be "what is the recipient's need."  If the recipient does not have a need for alimony, or their need is less than the 30% figure then alimony should be less (anywhere in the purple range in the graph above).

Scenario 2. No Ability to Pay - As described above, the Appeals Court in Hassey clarified that the first inquiry is whether or not there is a need for alimony and an ability to pay.  If the potential payor of alimony does not have the ability to pay alimony, then it doesn't matter what the formula yields; the amount will have to be limited by the payor's ability (even if a need exists).

Scenario 3.  Marital Lifestyle is a limiting or an expanding factor depending on the circumstances.

WARNING: There is a trap in the language of the statute; many people define "need" as only the basic needs and would therefore suggest that a recipient's "need" may be well below what they are used to in the marital lifestyle.  The Appeals Court has also clarified (in Hassey and in a recent Rule 1:28 decision) that the court must consider the factors listed in M.G.L. c. 208, §53(a).  Included in these factors is the "ability of each party to maintain the marital lifestyle."   Therefore, "need" is not the amount a recipient requires for a basic level of subsistence, but rather the amount a recipient requires to "maintain the marital lifestyle."
"Need" is not the amount a recipient requires for a basic level of subsistence, but rather the amount a recipient requires to "maintain the marital lifestyle."
This means that the factual evaluation of the "marital lifestyle" could create a higher figure than basic need might imply.  However, this can also be a limiting factor.  If the parties lived a frugal marital lifestyle and the payor only recently experienced a great leap in income, then the "need" required to maintain the "marital lifestyle" might be well below the 30% figure.

Practice Tip:  If I was arguing a case where I felt that the 30-35% formula was not appropriate, then before looking at the formula, I would argue that the court must look at the definition of alimony (need and ability to pay) and the factual factors in section 53(a).

As with many of these evaluations this complicated factual inquiry required by the court to determine alimony leaves a lot of room for error.  Clients should be encouraged to try mediation, collaborative law, or other out of court settlement options before taking this issue to a Judge, because both sides risk an alimony order that doesn't reflect all of the details of their financial reality.


Tuesday, July 22, 2014

Middlesex Pilot Program: Fast-Lane Informal Estate Petitions

from Wikipedia
The Middlesex Probate & Family Court already has a very successful and convenient "Fast Lane" program for so-called uncontested divorce petitions (Section 1A Joint Petitions for Divorce).  It saves time for both the courts and the parties to be able to walk an uncontested matter in to the courthouse and, if all of their paperwork is in order, be heard the same day.

According to a press release dated July 9, 2014 (available here), the Court will now be expanding this type of procedure to include Informal Estate Administration Petitions:
"Tara E. DeCristofaro, Register of the Middlesex Probate and Family Court, has announced that she will be piloting a walk-in session for informal petitions. The walk-in session will be available in the Registry every Tuesday afternoon from 12:00 pm. - 3:00 pm., beginning August 5, 2014. If the program is well received, plans are to expand it to multiple days per week."
As with joint petition divorce walk-ins, the informal packet must be complete and include all necessary documents and filing fees to be heard the same day.  This procedure should improve the experience of petitioners and we applaud the Register's efforts.

If you are looking for assistance in preparing the necessary documents to include in an informal packet, contact us for a consultation.

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