Scaling the Summit: A Family Law Blog

Best Valentine's Day Gift: A Court Ordered Trip to Red Lobster

2012-02-14T10:00:00.000-05:00

NBC Miami is reporting that a Judge in Florida has ordered a husband to take his wife on a date. The Judge ruled that a fight between the couple over the man forgetting his wife's birthday did not result in serious enough violence to warrant further court action. Although, the Judge indicated he would not normally treat domestic violence so light-heartedly he categorized the incident in this case as "very very minor". The wife can be heard in the full video indicating that she wants her husband to come home.

After inquiring of the wife what she likes to do and where she likes to eat, he ordered the husband to buy flowers, a card, get dressed up and take his wife to Red Lobster and bowling afterwards. He was not ordered to let her win. The Huffington Post's coverage of the order is available below:

What Should I Expect at My Divorce Pre-Trial Conference?

2012-02-13T10:00:00.001-05:00

Many of our divorce clients wonder what will happen at the Pre-Trial Conference. Most divorce cases actually settle at or shortly after their Pre-Trial Conference, so it is important to understand what the process actually entails before it begins.

Prior to your court date for the Pre-Trial Conference, both parties and their respective attorneys, if any, will be required to meet in person at what is called a "four-way conference." The purpose of this is to encourage discussion about possible settlement prior to the Pre-Trial Conference, so that the process of resolving issues might have begun before the case gets in front of a judge.

There is no testimony at a Pre-Trial Conference. If represented by an attorney, parties will not generally be asked to speak, although some judges have been known to ask the parties a few questions directly.

Each party will be required to file with the court a memorandum summarizing the procedural history and positions on disputed issues. Different judges have different notices for a Pre-Trial Conference laying out the structure for their memorandums. Usually, it is a six- to ten-page document.

Both sides will have an oral argument in front of a judge, who will give his or her feedback on the disputed issues. The judge's response is usually framed as a range in which he or she is inclined to rule should each disputed issue be brought to trial. Since we have an individual calendar system, unless the judge that hears the pre-trial retires or changes courts, it will be the same judge at trial. This is an opportunity, therefore, to get feedback directly from the person who decide your case if you can't settle.

For example, if the parties cannot agree as to whether an inheritance to the husband shall be divided along with everything else, the husband and wife (or their respective attorneys) will each argue their respective positions. After reading the Pre-Trial Memorandum and listening to each side present their cases during oral argument, the judge will, during that hearing, provide feedback for how he or she would be inclined to rule should the facts as presented by the husband be proved at trial, and the same for the facts as presented by the wife. Once the parties hear what the range of results will be from the judge there is a more limited scope of options for settlement. Expectations are generally tempered accordingly, and, usually, negotiations pick up speed. Often, cases settle at or shortly after the Pre-Trial for this reason.

Should you have any questions about divorce, contact Attorney Jonathan R. Eaton, or call 508.655.5980 to schedule a one hour initial consultation.

It's a Mad, Mad World: Uncomfortable Praise for the Evolution of Divorce Law in the United States

2012-02-09T10:00:00.000-05:00

Mad Men Season 3 Episode Photos
Mad Men Season 3 Episode Photos Photo Gallery
Don Draper (Jon Hamm) in Episode 13

One of television's most popular shows, Mad Men (season five premieres on March 25 on AMC), is set in the early to mid 1960s New York, and features the troubled marriage and eventual divorce of two of its main characters. The show has earned praise for its efforts to remain historically accurate, and as such, gives divorce practitioners a chance to view the dissolution of a marriage as if it were in a time capsule.

The show's main character, Don Draper, is a professionally successful advertising executive with a lifestyle which includes a serious drinking problem and many extra-marital affairs. His wife, Betty, had been a model, but stopped working to care for their children after their oldest was born. After discovering one of Don's affairs, and finding out that he was actually living under someone else's name, and that he had previously been divorced in California, she went to her father's estate attorney to ask about her options regarding a divorce. The following is the dialogue between Betty and the attorney, fictionally set in 1963 (from the season finale of Season 3):

Attorney: "What do you want to do? Do you want a divorce? In New York State you need to prove adultery. Can you?"
Betty: "Maybe."
Attorney: "I mean prove it in a court of law. That's hard to do, unless he wants out, but you're not going to get anything. You won't even be able to buy [your brother] out of [your father's] house, so you'll have to sell it. And, he can take the children. That's my legal advice. You want the rest of it? Are you afraid of him?"
Betty: "No."
Attorney: "Is he a good provider?"
Betty: "Well, he is but that's not the point. It's a lie so big, Milton. I feel like I've been in some dream since I found out. Just saying it out loud to you is ... the first time I'm realizing it's true."
Attorney: "You have three small children together. At least, go home. Give it a try. That's what I'd tell my own daughter."

At the time of this fictional dialogue, No-Fault divorce had not yet become available in most states. New York became the last state to allow for No-Fault divorce in 2010. Massachusetts, by contrast, has had No-Fault divorce for over thirty years.

No-Fault divorce makes proving a wrong, such as adultery, unnecessary in a divorce proceeding. Since No-Fault divorce became common, divorce cases have shifted their focus from what a husband or wife has done wrong to accepting that individuals should have the ability to exit a marriage if they feel that it has irretrievably broken down, and figuring out how to sever some of the ties that bind a couple.

Other than the procedural requirement that something fault-based be proven in court, the two points that the attorney makes that are diametrically opposed to modern divorce law is the idea that Betty would not get anything, and that Don would get the kids. Modern divorce law is designed to (it doesn't always work out this way, but it is designed to) minimize the transition for any children in the midst of a divorce. Judges like to keep children in as stable position as possible. The idea of having three young children taken away from their stay-at-home mother to reside primarily with their father and his long hours and drinking problem, without much evidence that the children would be better off with him than with their mother, is unlikely in a modern divorce. Further, the revolution (and evolution) of alimony, property division, and child support within the context of a modern divorce would make it very unlikely that Betty would be left without many assets or support from Don to continue their upper middle class lifestyle.

Lastly, and this might be more the issue of a Hollywood script than a historically accurate portrayal of how attorneys spoke to potential clients about divorce fifty years ago, it is inappropriate for an attorney to try and convince a potential client to either obtain or refrain from obtaining a divorce. That is a personal decision that should be made only by the individual.

What is considered "fair" is fluid. Views on politics, ethics, gender relations, and many more issues vary over the course of time, and vary among different cultures within the same time. From this divorce practitioner's viewpoint, the modern divorce is generally "fair" given what that term carries in early twenty-first century Massachusetts, at least far more than what it was fifty years ago.

Implications for Firearms Owners Served with 209A Restraining Orders

2012-02-07T10:00:00.000-05:00

Immediately upon being served with a 209A restraining order, M.G.L. c. 209A § 3B requires that the subject of the order surrender their License to Carry Firearms and/or Firearms Identification Card, all “firearms, rifles, shotguns, machine guns and ammunition which he then controls, owns or possesses.” Law enforcement officers, upon service of the restraining order, shall immediately confiscate all licenses, firearms and ammunition. Note that the requirement to surrender all firearms and licenses must be made immediately upon service of the order, even if you intend to oppose the issuance of the order at a subsequent hearing.

What happens to the seized firearms?

Weapons seized as a result of a restraining order by the police may only be thereafter transferred to a licensed dealer by the police department. The police department may not release the firearms back to you (even should the order be ultimately vacated); nor may they release the firearms to any licensed individual – only a federally-licensed firearm dealer. M.G.L. c. 209A § 3B is very specific as to who the firearms may be transferred to after seizure. The restraining order statute requires that only a licensed dealer may take custody of the firearms, and act as a transfer agent when your carry rights have been restored.

This means that even if the order is vacated after a hearing, you must first request that the Chief of Police or other licensing authority reinstate your license to carry firearms or firearms identification card. Once your license has been reinstated, you must then determine if the firearms are in the custody of the police, or if they have been transferred to a licensed dealer. If the firearms are still in the custody of the police, they must first be released to a licensed dealer, who may then transfer them back to the license holder (after they perform the appropriate check to ensure that you are properly licensed).

What if your employment requires the use of a firearm (such as a police officer)?

If the restraining order was initially obtained without a hearing, and you are required to carry or possess a firearm as a condition of your employment, you may file an affidavit demonstrating such an employment requirement, and request an expedited hearing on the restraining order. The Court will schedule a hearing, but only on the issue of the surrender and suspension of firearms pursuant to M.G.L. c. 209A.

How long does a firearms license stay suspended after the initial service of a restraining order?

If the restraining order is extended at the 10-day hearing, or at anytime thereafter following an extension or modification hearing, M.G.L. c. 209A § 3C requires that the individual’s license to carry firearms remains suspended (and any firearms may not be returned or possessed) for as long as the restraining order remains in place. As such, any firearms or firearms license may not be returned until the 209A order is vacated.

However, although an individual who was the subject of the now-vacated 209A restraining order may petition the Chief of Police to reinstate of a license to carry firearms, the Police Chief is not under obligation to do so. In Howard v. Chief of Police of Wakefield et al. (59 Mass. App. Ct. 901, 2003) the Appeals Court upheld the Police Chief’s determination that a 209A Abuse Prevention Order issued by a Judge, after a hearing, represents a finding that the individual poses a threat of violence, and that the expiration of the 209A does not erase the fact that the individual has a history of being found post a threat of violence. Since the chief has broad discretion to determine the suitability of an individual to possess a firearms license, the Chief or other licensing authority may consider this information as relevant to his determination as to reinstate the license.

Being the subject of a 209A Restraining Order may cause you to lose your firearms rights for life, and has significant implications as to your property rights, as well. Some licensing authorities may be willing to extend licenses to individuals who are no longer the subject of an abuse prevention order, but it is at the discretion of the licensing officer. Additionally, with even a small firearms collection the value of the confiscated weapons could be thousands of dollars, and larger collections could be valued at hundreds of thousands of dollars. The legal requirement to surrender such property immediately upon the issuance of a restraining order could have significant financial consequences. It is important that, if you are served with a restraining order, you immediately contact an attorney to both protect your rights, your property, and ensure compliance with the law.

For more information about firearms licensing laws, applications, renewals and appeals visit our firearms website.

A Mental Health Public Service Announcement

2012-02-06T10:00:00.000-05:00

A lot of the work that we do is representing individuals as they transition through difficult periods of their lives. Whether in the context of a guardianship, bankruptcy, divorce, child support, or child custody proceeding, the process can often be emotionally taxing.

While we do our best to remain aware of therapeutic jurisprudence, our court system often falls short of the needs of individuals struggling to deal with the emotional toll of the process. We often work with individuals who are struggling to cope with the process, and encourage them to seek the support of friends, relatives, and/or a therapist. When it comes to your well-being, leaning on the support of others can assist in navigating a trying legal process. In short, don't be afraid to ask for help with your emotional needs while your attorney helps with your legal needs.

Post-Divorce Problems: Who has to pay for College?

2012-02-03T10:00:00.000-05:00

In Massachusetts, the court has the authority to order divorced parents to contribute something to their children’s college education expenses. Usually the court won’t deal with this at trial unless the children are almost of age to attend college, but most agreements will address the issue in some way.

When it comes to the payment of college education expenses, the specific language that your Separation Agreement contains is very important. Many agreements require parents to contribute in proportion to their incomes and abilities at the time the college bill becomes due. However, if your agreement states that you are to share equally, then that could require you to contribute one half of the cost. How educational costs are defined by the agreement could differ greatly and the specific language of your Separation Agreement will be key to determining exactly what you are required to pay. And if you are required to pay a specific amount and you don't you could be liable for Contempt sanctions.

If the issue of payment of college is modifiable in your agreement or defined vaguely or not at all, then when it comes time to determine how the college education expenses are going to be split, you should try to reach agreement with your ex-spouse on this issue. If you are able to agree to a change with your ex (either directly, through mediation, or through collaborative negotiation) then you can file an agreement with your Complaint and request an uncontested hearing approving the division.

If your agreement is vague and you can’t agree, then you must file a Complaint for Modification to have the court determine contributions. If you have a specific agreement, but it is modifiable and you do not think you can afford to contribute an equal share for college, then you may want to seek modification of this clause by filing a Complaint for Modification.

If this issue is put before a Judge, many Judges are reluctant to order parents to contribute more than one third or one half of the cost of a state school. Of course, this also depends on the financial abilities of the parents.

Often child support and/or alimony orders may also be changed by a Judge if college education expenses are going to be added to the total support obligation.

Click here to learn more about filing a Complaint for Modification.

Probate and Family Court Funding Crisis in Massachusetts

2012-02-02T10:00:00.000-05:00

The Massachusetts Bar Association posted the below video to raise awareness about the problems of not properly funding the judicial branch in Massachusetts. The Probate and Family Courts specifically have been hard hit, and were recently forced to reduce their hours. As discussed in the video, any law-abiding citizen can end up in the Probate & Family Courts for necessary family matters such as probating a family member's estate or obtaining a guardianship to protect an elderly relative. When these cases can't be heard in a timely manner, the system is failing the public. As the saying goes: justice delayed is justice denied.

"As the House of Representatives and then the Senate begin their budget debates in April and May respectively, you, as a member of the public or legal community, can make a difference, by reaching out to your state senators and representatives to reiterate the importance ensuring a full funded judicial system. Visit http://www.massbar.org/courtfunding to identify your state representatives and senators and join the MBA in advocating for proper funding of the state's third branch of government -- the Judiciary."

Post-Divorce Problems: My Children Aren't Safe with my Ex!

2012-01-30T10:00:00.000-05:00

As described in our previous post, Should my Child Support Change?, there are two types of court orders which always merge into the Judgment, meaning they can be modified if there is a material and significant change in circumstances: child custody and child support.

The Court retains jurisdiction over provisions relating to child custody and visitation to protect the children. For example, in the event one party becomes unfit to parent the children it would be detrimental to the children to have that provision survive and be unchangeable.

This means that if there is a change in circumstances which has caused your children to be put in an unsafe situation, you can bring that change to the court’s attention and potentially obtain a change in the custody and parenting plan orders. If the change is an emergency situation, then you can request that the court immediately transfer custody or limit parenting rights by filing an Emergency Motion along with an Emergency Affidavit.

In order to make a change on an Emergency Motion the emergency must be significant enough for the court to make a change without the opportunity for the other party to be heard. Usually an order after an Emergency hearing will only last for a few days until the other party can attend a hearing and tell their side of the story.

Some examples of significant enough events to constitute an emergency are a parent abusing the child, taking illegal substances, being admitted to a psychiatric facility, or being arrested on a charge that would affect their parenting fitness.

Of course, if you are witnessing an immediate threat to your child’s safety then you should immediately call the police. Courts can only change orders, which are just pieces of paper. Pieces of paper don’t protect your children without proper enforcement.

Click here to learn more about filing a Complaint for Modification.

Post-Divorce Problems: Should my Alimony Order Change?

2012-01-26T10:00:00.000-05:00

Whether or not an alimony order can be modified post-divorce depends first on whether the order merged or survived. Many decisions in a divorce agreement, such as property division, survive the Judgment and cannot be changed. When reaching an agreement, spouses can decide whether or not to make alimony orders or waivers permanent by surviving them or merge them into the Judgment. If merged this means that such orders can be modified if there is a material and significant change in circumstances. Merging alimony orders is more typical because no one knows exactly what could change in the future.

If the order merged, then the duration of an alimony order may be modifiable under The Alimony Reform Act of 2011. We have explored this possibility at length in our previous post: Modification under the Alimony Reform Act of 2011: Updated Flowchart.

In addition, under both the current law and the new law (which takes effect on March 1, 2012), alimony orders that merged can be modified if there has been a material and significant change in circumstances.

In order to modify alimony you must file a Complaint for Modification. If you are able to agree to a change with your ex (either directly, through mediation, or through collaborative negotiation) then you can file an agreement with your Complaint and request an uncontested hearing. If you can’t agree, then you must file a Complaint for Modification which tells the court what has changed.

To succeed on a Complaint for Modification you must prove two things: first you must prove that there has been a "significant material change in circumstances;" and second you must prove that the change in circumstances warrants a change in the Order.

A "significant material change in circumstances" is simply explained as a change in your life that is big enough to have an effect on the factors that related to the original Order of the Court. For example, if the Order that you want to change is alimony, then you must demonstrate that there has been a change to the factors that affect an alimony determination, such as the income of the parties, expenses of the parties or needs of the parties. In addition, you must demonstrate that that change is significant.

Click here to calculate your Alimony in Massachusetts under the new law.

Click here to learn more about filing a Complaint for Modification.

Post-Divorce Problems: Should my Child Support Change?

2012-01-24T10:00:00.000-05:00

In our last post we explored reasons that there may be some inequities post-divorce that cannot be remedied. Many decisions in a divorce agreement, such as property division, survive the Judgment and cannot be changed.

However, there are two types of court orders which always merge into the Judgment, meaning they can be modified if there is a material and significant change in circumstances: child custody and child support.

The Court retains jurisdiction over provisions relating to child custody and visitation to protect the children. For example, in the event one party becomes unfit to parent the children it would be detrimental to the children to have that provision survive and be unchangeable. Although typically paid to the custodial parent, child support is also for the benefit of the child, not the parent. Therefore, you cannot give away your child's right to seek greater child support if there is a material and significant change in circumstances.

In order to modify child support you must file a Complaint for Modification or a Joint Petition for Modification. If you are able to agree to a change with your ex (either directly, through mediation, or through collaborative negotiation) then you can file a Joint Petition for Modification of Child Support. If you can’t agree, then you must file a Complaint for Modification which tells the court what has changed.
To succeed on a Complaint for Modification you must prove two things: first you must prove that there has been a "significant material change in circumstances;" and second you must prove that the change in circumstances warrants a change in the Order.

A "significant material change in circumstances" is simply explained as a change in your life that is big enough to have an effect on the factors that related to the original Order of the Court. For example, if the Order that you want to change is a Child Support Order, then you must demonstrate that there has been a change to the factors that affect a Child Support determination, such as the income of the parties, expenses of the parties or needs of the children. In addition, you must demonstrate that that change is significant. In Child Support cases a good rule of thumb for determining significance is whether or not the change in circumstances would result in a 20% change in the Child Support Order.

Click here to calculate your Child Support in Massachusetts.

Click here to learn more about filing a Complaint for Modification.

Post-Divorce Problems: My Ex is Doing Better than Me

2012-01-20T10:00:00.000-05:00

While our last post explored what happens when your ex violates the Divorce Judgment, what happens if everyone is following the agreement perfectly, but one of you has clearly got an advantage?

A common complaint that potential clients express to us is a dissatisfaction with their prior agreement or judgment because their ex-spouse seems to be doing very well. They might have a bigger house, or take a lot of vacations, or have a really nice car. In some cases this is a legitimate indicator that a support order may not be fair, and in those cases a Complaint for Modification may be warranted (our next few posts will address when this is appropriate).

However, many times this imbalance reflects something which can’t be fixed by a Complaint for Modification. In some cases exes have not fully accepted the divorce yet, and comparing your lifestyle to your exes is an indication that you haven’t yet moved on. Even with a well-crafted agreement your life is unlikely to turn out exactly equal to your exes.

Many couples divorce because they have different views on finances and in these cases usually one spouse is good at budgeting and the other is not. Divorce doesn’t change these habits, and a spender will still be a spender and a saver will still be a saver. A few years after a divorce, these different habits will become evident in the lifestyle of each ex-spouse. One of the consequences of separating your finances in the divorce is to give each person the chance to fail or succeed on their own, and if your ex has succeeded because they manage their finances better you have no legal (or moral) right to gain an ongoing benefit from that success.

In other cases, the imbalance that has been created is due to poor choices that were made at the time of the divorce. Both you and your ex-spouse may be equally good at budgeting, but if you made poor financial trades in your property division then you may be feeling the consequences of that now. For example if you were divorced in 2004 (prior to the housing market crash) and you took house equity in exchange for your spouse taking other assets, then you probably lost out on that deal. Your ex might still have close to their original value of assets, while you are left with little to no home equity.

I have often tried to explain to divorcing clients that trading one type of asset for another often has both tax consequences and risk/benefit consequences. Pinning one’s hopes in the housing market for their retirement is not always the best idea (especially not right now). However, many people still choose to trade different types of assets, in order to meet a non-financial goal, such as being able to stay in their home.

Once a property division is completed, these types of decisions, and their consequences, cannot be revisited. The importance of understanding your property division and its potential consequences is one of the most important reasons to consult with good legal counsel, and oftentimes with financial planning experts as well.

Click here to learn more about crafting appropriate Divorce Agreements.

Post-Divorce Problems: My Ex Isn't Following the Judgment

2012-01-18T10:00:00.000-05:00

Unfortunately, sometimes the end of a case isn't the end of a dispute. Often two people who just don't get along anymore end up back in court to resolve an issue that arises after the divorce case has ended. Whether the case ended with an agreement (usually called a "Separation Agreement" or a "Divorce Agreement") or with a trial, there will be a judgment dividing the assets and liabilities of the former spouses, and defining any support or other obligations owed to each other, or to any children.

This Judgment can be amended or enforced as necessary and dependent on certain circumstances. Our next series of posts, entitled Post Divorce Problems, will address some of the common reasons that you could end up back in court, post-judgment.

In some instances, ex-spouses return to court when one party fails to follow the judgment. When the judgment is clear (and unambiguous) as to what that individual is supposed to do, or not do, and that individual violates the judgment, the aggrieved party can file a Complaint for Contempt. In short, a complaint for contempt is a new lawsuit in which one person is accusing the other person of not following the judgment and requesting sanctions.

There are two types of contempts: civil and criminal. The goal of a civil contempt is to force compliance with the violated court order, and they are far more common than criminal contempts. The goal of a criminal contempt is to punish the other party for violating the earlier court order. Civil contempts are more common because usually you want the person to be forced to do what they were ordered to do in the first place, not just be punished for their failure to comply.

Click here to learn more about Contempt Complaints.

Child Tax Deductions: Who gets them in a Divorce?

2012-01-16T15:02:00.000-05:00

On your Federal Income Tax Return you can claim an exemption for each qualifying child, which for the tax year 2011 will result in a $3,700 per dependent credit off of your taxable income. Depending on your tax bracket this could save you as much as $1,295 in federal taxes.

But if you are separated or divorced and filing separate federal income tax returns, who gets the exemption?

First of all, you can't both take it. Only one of the parents can use the exemption for each child on their return. If you both claim a child, the IRS will reject your return and send you a letter indicating that you must amend.

So which one of the parents gets to use the exemption?

Pursuant to IRS Publication 501, the IRS considers a child of divorced or separated parents in most cases to be the qualifying child of the custodial parent only. The IRS defines custodial parent as "the parent with whom the child lived for the greater number of nights during the year. The other parent is the noncustodial parent."

It doesn't matter if your agreement says you share custody. If one parent has the child more than 50% of the time, then that parent is the custodial parent as far as the IRS is concerned. ("If the child lived with each parent for an equal number of nights during the year, the custodial parent is the parent with the higher adjusted gross income (AGI).")

It is possible, though, to transfer the exemption from the "custodial" parent to the "noncustodial" parent. Some division of this benefit is often negotiated as part of a divorce agreement or ordered by a Judge, to give the noncustodial parent some tax credit in exchange for the child support that they pay from post-tax income. In the case of one child, the exemption can be alternated from year to year, or when there are multiple children the exemptions can be divided between parents.

In order for this transfer to be allowed by the IRS, certain rules must be complied with. According to Publication 501, a child can be treated as the qualifying child of the noncustodial parent if four requirements are satisfied:

The parents are divorced or legally separated under a decree of divorce or separate maintenance, the parents are separated under a written separation agreement, or lived apart at all times during the last 6 months of the year, whether or not they are or were married;
The child received over half of his or her support for the year from the parents;
The child is in the custody of one or both parents for more than half of the year; and
The custodial parent signs a written declaration, Form 8332, that he or she will not claim the child as a dependent for the year, and the noncustodial parent attaches this written declaration to his or her return. (For cases prior to 2008 this requirement is slightly different and you should review Publication 501 further).

If you have a divorce agreement that states that the non-custodial parent gets the child's tax exemption, then Form 8332 must be completed or the IRS could reject the return. If the custodial parent refuses to sign Form 8332 then you must file a Complaint for Contempt with the Probate & Family Court. The IRS will not honor the divorce agreement without a signed form 8332.

Visit our site for more information on how to file a Complaint for Contempt.

I Just Got Divorced, How Do I Change My Name?

2011-12-29T10:00:00.000-05:00

While there is a separate Petition for Change of Name in the Probate and Family Court, you can also change your name pursuant to a divorce judgment if your name change happens to be due to a divorce. There is a $150 filing fee plus a $15 surcharge for filing of a Petition for Change of Name. Technically there is only a $100 fee for changing your name pursuant to a Divorce Action, but this fee is seldom enforced.

If you are not sure if you want to resume a former name during a divorce you may still change your name later by filing a Petition for Change of Name with the court, starting a new court case specifically for that purpose.

Whether you change your name pursuant to a divorce case or pursuant to a Petition for Change of Name, there are some important logistics that you should be aware to record the name change with various agencies and organizations.

The court will not contact the Social Security Administration on its own. You will need to obtain a certified copy of your divorce decree (discussed further below), fill out and submit Form SS-5, and mail them both to your nearest social security office. The Internal Revenue Service will be notified automatically by the Social Security Administration concerning your name change.

You will need to go to the Registry of Motor Vehicles in person to have your license and registration changed.

To obtain a new passport, you will have to fill out a different form depending on the status of your current passport:
• If your passport is valid, you have had it for more than one year, and you were over age 16 when it was issued to you, fill out Form DS-82 and follow the directions for submittal. You will need a certified copy of your divorce decree for this form.
• If your passport is valid, you have had it for less than one year, fill out Form DS-5504 and follow the directions for submittal. You will need a certified copy of your divorce decree for this form.
• If you do not have a valid passport, you will need to fill out Form DS-11. You will need a certified copy of your divorce decree for this form. Additionally, you will need to submit this documentation at an Acceptance Facility or a Passport Agency, and not by mail.

To change your name on the voter registration rolls, you can go to the town hall, or some websites such as www.RockTheVote.com allow for name change submission. You may also be able to do this at the RMV when you update your license.

You might also want to change your name at the Post Office. You can do this in person, or online.

Finally, regarding actually obtaining a divorce decree, the court does not automatically send you a copy of your official absolute divorce decree (the final decree that becomes available 90 days after the issuance of the Judgment of Divorce Nisi). You can obtain a copy by mail or in person at the court. The fee for a certified copy of the divorce decree is $20, plus $1 for each page except for the first. You can call the court and ask how many pages it will be, and mail in the appropriate payment.

Modification under the Alimony Reform Act of 2011: Updated Flowchart.

2011-12-28T11:54:00.003-05:00

The following flow-chart depicts the decision tree for determining whether you qualify for a modification of a Massachusetts alimony order under The Alimony Reform Act of 2011. You always have the ability to reach an agreement for modification, but in the event that you and your ex-spouse disagree about whether a modification order should be changed, this chart can help you figure out whether a court will change your order.

The new law becomes effective March 1, 2012 but to prevent a rush to the courthouse steps, the Act provides for delayed implementation of some of the provisions. The dates are as follows:

March 1, 2012 - the Act takes affect for current cases; previously adjudicated cases can be modified if the recipient spouse is cohabitating as defined in the statute;

March 1, 2013 - Modifications allowed for marriages of less than 5 years or if the payor will reach Social Security Retirement Age by March 1, 2015;

March 1, 2014 - Modifications allowed for marriages of less than 10 years;

March 1, 2015 - Modifications allowed for marriages of less than 15 years;

September 1, 2015 - Modifications allowed for marriages of less than 20 years.

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It's Our First Holiday Season After the Divorce: How Do We Make It Easier on the Kids?

2011-12-23T09:00:00.000-05:00

The holiday season is usually thought of as being a time to exchange gifts with loved ones, and gathering with friends and family. For families transitioning through a divorce or separation, the holidays can mark a melancholy season. What once was a time to spend with family has now taken on a new form. For divorcing or separated couples with children, the holidays are now a time where the children are being shuttled to and from different parents' homes instead of spending the whole time with both parents together.

While we are not therapists, we recognize the stress that is unique to divorcing couples with children. Family therapist Carleton Kendrick, Ed.M., LCSW, wrote on Family Education's blog about how parents can approach the first separate holiday season with their children. Below is his advice and highlights:

Show them you understand their feelings and worries: "I know you're going to feel sad sometimes this Christmas and maybe a little angry and worried too. It's going to feel different not being together like we have been. Things will be different this year."
Offer them encouraging words: "You know, we all know how to have a good time together at Christmas. Your dad and I are going to think about all those good times, and we'd like you both to think back to them too. Even though it won't be the same, I know we can all enjoy each other at Christmas time and that your dad and I can each do some fun things with you over vacation. It's not going to be the same but we're going to make it good."
Be cordial with your ex over the holidays. Your behavior during this traditional family time can provide your kids with some hope that you two can and will be cordial with each other in the future.
Talk with your ex about gifts so your children won't be overindulged or let down.
Your kids are old enough to ask directly how they want to celebrate the holidays, given your changed family structure. Asking them what they want to do can lead to a natural discussion of what they're thinking and feeling.
Create some new holiday traditions that your kids can look forward to doing with you. Encourage your ex to create his own different traditions as well.
Keep all extended family, grandparents, etc. involved during the holidays (even if it can only be through email, cards, phone calls). They are still an integral part of your children's lives and provide them with continuity and security in the face of your changed family structure.
If you have done so before, continue to help your children select a present for your ex.
Don't communicate negative feelings about your ex through your words or behavior. Your kids will be taking their cues from the both of you.

Should I Sign My Divorce Agreement?

2011-12-22T10:00:00.000-05:00

Many individuals come to our office having gone through mediation with their soon-to-be-ex-spouse, asking us to review the separation agreement that they have negotiated. Whether we ultimately advise a client to sign a proposed agreement or not depends on the contents of the document and the individual's particular set of circumstances,

1. Has the marriage been irretrievably broken down with NO CHANCE OF RECONCILIATION?
2. Does the Agreement completely resolve all issues relevant to the marriage in a fair and reasonable manner?
3. Is this an agreement that you can live with?

In the end, it is not our life but yours, and the divorce agreement will govern some important aspects of your life in the future, especially when there are children involved. Being able to "live with a divorce agreement" means not only being happy or satisfied with it, but also being able to perform any of the agreement's obligations. If the agreement is not something that you can live with, and/or live up to, you might find yourself back in court in the near future.

When we draft agreements to propose for settlement, and when we review proposed agreements brought to our office, we believe it is necessary to gauge both the fairness of the agreement and the likelihood of our client falling into contempt. Ultimately, whether the agreement is fair and reasonable is up to you, but if we don't think you can afford the commitments you are making we will not give the proposal our endorsement.

While there are certainly legal implications to the various parts of a divorce agreement, if you are satisfied that you understand and can meet the commitments you are making, then you must still ask yourself if the agreement is something that you can live with. The goal of a divorce agreement should be transitioning to the next stage in your life, and avoiding a return trip to court.

The Financial Statement and the Importance of Honesty

2011-12-20T10:00:00.000-05:00

As part of any family law case in Massachusetts (including divorce, paternity, child support, modifications, etc.), Massachusetts Supplemental Probate Court Rule 401 requires that each party file a complete, true, and accurate financial statement. For individuals earning less than $75,000 per year, their financial statement is the "short form." Individuals earning more than $75,000 are required to fill out the "long form."

A surprising number of individuals don't take the financial statement seriously, only to be surprised when their financial statement is scrutinized by the opposing party or the judge. When we receive a financial statement prior to a court hearing, we compare the income versus the expenditures, as well as to any previous financial statements. In addition, we review whether the opposing party has listed items such as interests in trusts and businesses, digital assets, patents, valuable collections, and whether the reported income is consistent with previous tax returns and loan applications.

When you sign a financial statement, you are signing under oath that it is complete, true, and accurate. When the opposing party shows the judge that your financial statement is misleading, your credibility comes into question. As countless grade school teachers have lectured, honesty is the best policy.

Is there NO CHANCE OF RECONCILIATION?

2011-12-12T11:14:00.001-05:00

California Attorney Mark B. Baer started another great discussion on a LinkedIn group I belong to entitled:

ARE THERE OTHER FAMILY LAW ATTORNEYS WHO TRY AND HELP THEIR CLIENTS TO IMPROVE THEIR MARRIAGES BEFORE DISSOLVING THEM?

The answer is yes, and here were my comments in response to this discussion:

In Massachusetts the standard for a no-fault divorce is irretrievable breakdown and the party (or parties) requesting the divorce must testify under oath that their marriage has irretrievably broken down with no chance of reconciliation. Whenever I provide an initial consultation, I ask that question very seriously and slowly, emphasizing the "no chance of reconciliation." In many cases it is clear that the potential client hadn't considered their desire for a divorce from that standpoint, and in many cases they have difficulty stating that there is no chance of reconciliation.

Because of the hesitation that so many potential clients show, I always inform them that I am not in the business of ending marriages, but rather in the business of helping dissolve the business partnership of a marriage when spouses have already come to the decision that their marriage is over. I am also not trained as a therapist, and so I recommend that if they are not sure about their decision, that they consult with a therapist either individually or as a couple before deciding whether to move forward with a divorce.

Any attorney that doesn't ask that question, in my opinion, doesn't understand that the role of a family law attorney is different than in other areas of the law. We have to be sensitive to the fact that the decisions and positions we help advocate for have impacts far beyond the courtroom, both on the emotional well-being of our clients, and especially on their children.

- Justin L. Kelsey, Esq.

Visit the Office of the Future in the World of Tomorrow!

2011-12-11T14:17:00.000-05:00

Thanks to FirmFuture presenter Gabriel Cheong for inspiring us to make better use of our iPad in the office.

Now when you schedule an initial consultation we can use our iPad, displayed on the flat screen TV (pictured above), to show you:

how to calculate Child Support or Alimony online
how to create Parenting Plans online
how calculate the cost of Bankruptcy online
or evaluate the length of time a Bankruptcy will take online.

And if you want any of the information printed out so you can take it home, our new laser HP printer can print directly from the iPad right in our conference room, using WiFi magic.

These are just some of the ways that we are trying to design our new office, at 160 Speen St, Suite 202, Framingham, MA, to be as friendly, convenient and useful to current or potential clients. If you are interested in checking it out, give us a call at 508.655.5980 or set up an appointment online here.

Is my iTunes Account a Marital Asset?

2011-12-08T10:00:00.000-05:00

In Massachusetts, everything that either party to a divorce action owns or owes, regardless of whether it was acquired during the marriage or not, is subject to division in a divorce case. How it might be divided is a different question, but in order for that evaluation to happen, all assets and liabilities must first be disclosed. Massachusetts requires individuals involved in divorce cases to submit financial statements disclosing all of their assets and liabilities within 45 days of opening a divorce case.

The assets to be listed on a financial statement are to include everything. This includes the most commonly thought of assets, such as physical assets (artwork, automobiles, jewelry, houses, etc.) and financial accounts (bank, investment, stock, retirement, etc.). This disclosure should also include items which you might not think about as assets.

One example of an asset that many people don't typically think about is their frequent flyer miles, which was parodied in the beginning of the movie Wedding Crashers (warning: link includes profanity).

In the digital age there are other digital assets (such as a significant iTunes library) which you may also not think of as a typical asset, but which should be disclosed. These are becoming more common as digital libraries can now include, games, movies and even books. A recent article on TechCrunch, What If You Could Legally Resell Your Digital Music? ReDigi May Have Found The Solution., suggests that companies may start brokering digital accounts, which could result in them being even easier to transfer, and therefore more similar to a traditional (non-digital) asset. Essentially your iTunes account of 200 CDs would be similar to actually owning 200 CDs. Of course, there may be restrictions on transferring these assets and any agreement should be mindful of recent legal decisions concerning the distribution of digital copyrighted materials.

While, a digital asset is subject to division in the resolution of a divorce case, they will not always have significant value and may be a non-issue. Failing to disclose an asset, however, could be a significant issue and open you to criticism and possible fraud or perjury allegations. Therefore, when completing your Financial Statement we always advise, err on the side of disclosure even if you have to include explanatory footnotes regarding value or restrictions on transfer.

To read more visit our post: The Financial Statement and the Importance of Honesty.

Does the Staggered Duration Formula for Alimony Mean that Lawyers Will Encourage Potential Clients to File for Divorce?

2011-11-29T10:30:00.000-05:00

Hopefully not! However, it does make anniversaries more important than they already are.

Under the Massachusetts Alimony Reform Act of 2011, which becomes officially effective on March 1, 2012, general term alimony will now have a time limit, determined by the length of the marriage.

For marriages lasting 5 years or less, general term alimony will last no longer than one-half of the number of months of the marriage.
For marriages lasting more than 5 years but less than 10 years, general term alimony will last no longer than 60% of the number of months of the marriage.
For marriages lasting more than 10 years but less than 15 years, general term alimony will last no longer than 70% of the number of months of the marriage.
For marriages lasting more than 15 years but less than 20 years, general term alimony will last no longer than 80% of the number of months of the marriage.
For marriages lasting more than 20 years, the court may order that general term alimony will last indefinitely.

There are circumstances that would justify a deviation from this staggered scheme, such as the recipient spouse co-habitating with a significant other, and the death of either spouse, and I would encourage you to speak to an attorney if you have questions about the Alimony Reform Act of 2011.

The staggered scheme creates a jump in the duration of an alimony order for each five years of marriage. This creates a dilemma for individuals who are approaching a five, ten, fifteen, or twenty year anniversary and are struggling with whether to seek a divorce. Waiting until after one of these pivotal anniversaries, should their situation be one where alimony is later awarded, would result in paying alimony for a longer period of time.

This puts attorneys in an uncomfortable position. Any respectable family law attorney would never advise or encourage an individual that is struggling with the decision of whether to remain in a marriage and commit to repairing any existing damage to get a divorce. For individuals that come into our conference room for an initial consultation, walking through our door is often one of the most difficult decisions that they have made. It is not the attorney's job to make that decision any more difficult.

The dilemma lies with individuals who are seeking legal advice but have not yet made a final decision as to whether they will file for divorce. Part of our job as attorneys is to inform our clients, and potential clients, what the law is. With the staggered scheme for calculating the duration of alimony, this means that remaining married past a five, ten, fifteen, or twenty year anniversary could result in a longer alimony order. It is up to the individual whether this is a tipping point for filing, or just a consequence of not yet being sure whether their marriage is over.

Does Reducing and Limiting Alimony Force Primary Caretakers into the Workforce?

2011-11-28T10:55:00.000-05:00

When a child is born out of wedlock, either parent may initiate a court proceeding to establish certain rights and obligations that come with raising a child. Such rights include visitation, the ability to make significant life decisions for the child, and child support. The purpose of child support is to provide a measure of financial security for a child from a parent that might not be living with the child full-time.

When a child is born into a marriage that later dissolves, child support may be ordered, and usually is. The purpose of child support for children born into a marriage, or out of wedlock, is identical: to provide for the financial costs of raising a child.

However, when marriages dissolve, the finances of the couple might be such that a court will order alimony as well. The purpose of alimony is to provide for the financial well-being of a former spouse. The issue of alimony always has been, and will likely always be, controversial. The rationale behind it is that in a marriage, both people contribute in (ideally) complementary ways. When one spouse devotes time to furthering his or her career, it is (ideally) with the contribution of support from the other spouse. For example, if one spouse is picking up extra hours at work to get a promotion, he or she is doing so while his or her spouse is taking care of the home, or the kids. Often times, one spouse is not as able to further his or her career while their partner does. When the marriage dissolves, courts want the spouse who was not as able to further his or her career to smoothly transition into a financially independent unit, and the tool through which this is accomplished is alimony.

In Massachusetts, alimony is still officially a matter of great discretion for judges. The Alimony Reform Act of 2011 does not become effective until March 1, 2012, although many judges are issuing orders consistent with its new limits. The Act, for the first time in Massachusetts, creates a formula for calculating alimony, much like the existing child support guidelines in Massachusetts. One of the more important provisions of the Alimony Reform Act is that no income included in the calculation of child support will be then included in a calculation of alimony. The child support guidelines in Massachusetts are limited to a combined income of $250,000. Thus, unless the combined income in a marriage where there are minor children is more than $250,000, absent circumstances that would convince a judge to vary from the formulas, there will be only child support and no alimony order (provided that the lesser earning spouse is the primary caretaker of the minor child or children -- judges still have a good deal of discretion, and I would encourage you to speak to an attorney if you have any questions or concerns about your specific case).

This muddies the waters a bit from the varying justifications for child support (provide for the child) and alimony (provide for the former spouse). One justification for this is attrition. For couples earning less than $250,000 combined, there is usually not enough income to justify both child support and alimony. What the court will label as "child support" (and the IRS and Department of Revenue will treat as "child support") does assist the primary caretaker into transitioning into a financially independent unit.

However, it is not enough to provide for the economic quality of life enjoyed during the marriage. When a couple divorces, the expenses once shared (one home, one electricity bill, etc.) are now separated. Now there are two homes to pay for, and two electricity bills. Even if the combined income stays the same, the combined expenses will increase. For many individuals, receiving child support will not be enough. They will need to transition back into the workforce, or focus more time on increasing their income to meet their expenses. The "child support" will provide a measure of financial security to the recipient spouse as he or she transitions to devoting more energy towards furthering his or her career. This, unfortunately, comes at the cost (usually) of spending time at home with the children.

You have been appointed as Guardian, do you need to be appointed as Conservator, too?

2011-11-28T10:00:00.000-05:00

When an individual is determined to be incapable of making independent decisions necessary for proper management of his or her life, a guardianship is often necessary. The form, or limits, to the scope of the guardianship (meaning what management authority is being transferred from the "incapacitated" individual to the guardian) depends on the circumstances of the individual. A guardianship may be permanent, temporary, or limited to particular decision-making authority.

A guardianship does not provide for the authority to manage the incapacitated individual's assets, unless the incapacitated person's only assets stem from monthly income. In order to manage existing assets of an incapacitated individual, a conservatorship is necessary.

Under a conservatorship, the incapacitated individual may actually lose the legal ability to manage their bank accounts, enter into contracts, or accrue debt, so that the conservator is responsible for these responsibilities. A conservatorship may be limited to certain financial decisions, such as the authority to pay for medical expenses.

If you would like more information on guardianships or conservatorships, or you would like to schedule a free one-hour consultation, contact the attorneys at Kelsey & Trask, P.C. by email or by calling 508 655-5980.

Is Alimony Always Tax Deductible?

2011-11-17T10:37:00.001-05:00

Generally, alimony is tax deductible to the payor and taxable income to the recipient. The purpose of this tax treatment is to treat the alimony as a transfer of income from payor to recipient. However, there are requirements for alimony payments to qualify for this favorable tax treatment.

The IRS defines alimony as: "a payment to or for a spouse or former spouse under a divorce or separation instrument. It does not include voluntary payments that are not made under a divorce or separation instrument."

Agreements executed after 1984 have different requirements than agreements executed before 1985. For purposes of this post we are only going to discuss post-1984 agreements:

Under a post-1984 agreement, judgment, or order, alimony is only tax-deductible to the payor if the following requirements are met:

The parties file separate tax returns;
The payments are in cash;
The agreement, judgment or decree does not indicate that the payments are not alimony;
The spouses are not members of the same household at the time the payments are made. This requirement applies only if the spouses are legally separated under a decree of divorce or separate maintenance (i.e. doesn't apply to temporary orders). You are not treated as members of the same household if one of you is preparing to leave the household and does leave no later than 1 month after the date of the payment;
Payments end upon death of the recipient spouse; and
The payment is not treated as child support (which includes making the payment contingent on an event relating to your child).

For more information and examples that pass or fail these requirements read IRS Publication 504.

A Response to "What Triggers Violence in Custody Battles in the United States?"

2011-11-09T15:03:00.004-05:00

A colleague in California, Attorney Mark B. Baer, recently wrote a post discussing some horrific and recent tragedies of domestic violence that have occurred during the process of divorce or child custody court cases.

Attorney Baer points out that our courts are not designed to deal with all of the emotions that come with a divorce, or a child custody dispute, and neither are most attorneys. Attorney Baer then posits a direct connection between these cases of violence in divorce or child custody disputes, and concludes that the family law system in the United States is to blame for that violence.

We respectfully but strongly disagree. The frustrating delays and other inefficiencies of the court system are not the cause of domestic violence. Abusers, making their own choices, are the cause of domestic violence.

The following response was written jointly by Jonathan Eaton, Esq. and Justin Kelsey, Esq. as a reaction to Attorney Baer's article:

Attorney Baer's post describes two problems: (1) frustration borne from an extended court process and (2) domestic violence. He then assumes that one can lead to the other, and that therefore the alternatives to one (alternative dispute resolution instead of the traditional court process) would be an effective way to prevent or solve the other problem (domestic violence, particularly extreme cases of domestic violence). Attorney Baer's rationale is faulty because frustration with the court process is not the root cause of domestic violence.

Domestic violence is on the extreme end of the spectrum of controlling behavior. It occurs when one partner in a relationship desires to control the other, which may escalate to acts of emotional or physical violence. Although frustration with the court process could trigger a specific act of violence, simply avoiding court does not remove the underlying problem.

Furthermore, in cases where the controlling behavior has been an issue prior to the start of the divorce process, alternative dispute resolution could be used to continue a pattern of intimidation and abuse.

Mediation and collaborative divorce are voluntary, consensual processes. They require open and honest participation and if either individual is dissatisfied with the process, he or she may end it at any time. If an emotionally controlling individual is feeling that he or she is not getting his or her way in mediation or in the collaborative law process (in other words, feels as if he or she is not in control), then that process is likely to fail. If control is more important than resolution to a spouse, then they will revert back to their controlling behavior, regardless of the process being used.

Child custody battles can be the most emotionally charged family law disputes. Attorney Baer illustrates three examples of child custody disputes ending when one parent allegedly murdered the other (and sometimes the children and bystanders). It is impossible to know for sure whether any of these tragedies would have been avoided had the respective couples engaged in alternative dispute resolution, but it is unlikely that a person who is willing to resort to murder when they don't get their way was going to be satisfied with compromise. It is far more likely that an abuser would take advantage of alternative dispute resolution to get their way. Allowing abusers to control a situation so as to avoid outbreaks of violence is not a solution, it is tantamount to condoning their behavior and perpetuates the pattern of control.

Attorney Bear is correct that for many cases alternative dispute resolution can greatly increase the likelihood of a peaceful resolution, and successful co-parenting plans. However, in cases where there is a history or risk of domestic violence, the delays and frustrations of the court system are far outweighed by the protections that the court can provide to abuse victims (such as orders from protection from abuse).

Like Attorney Bear we encourage potential divorce litigants to consider the alternative ways to get divorced, but at the same time we feel it is very important to recognize that his article significantly misrepresents the causes of domestic violence:

The court does not create abusers, and there is no excuse for domestic violence.

At Kelsey & Trask, P.C., we pride ourselves in our mediation and our collaborative law practice, and we hope that it becomes more widespread as more individuals become aware of the alternatives to the traditional litigation track. In general, we feel that it is the most effective forum for accomplishing what is in the best interests of the children. However, we recognize that it is not "one size fits all."

In Massachusetts, our probate and family courts have become so backlogged with cases that clerks and registers have cut their hours working with the public in order to allocate more of their hours to performing the administrative work necessary to move the existing cases along. The traditional litigation process is too long, and often very frustrating for people already transitioning through a difficult period. If you and your spouse are willing to participate openly and honestly in mediation or collaborative divorce, then we encourage you to learn more about these processes.

But if you are a victim of domestic violence, your first priority should be the safety of you and your children. You should explore all of your options, including the protections offered by the court. If you or someone you know suffers from Sexual or Domestic Violence, call the National Domestic Violence Hotline at 1-800-799-SAFE, or if you live in Massachusetts check out these resources available on the Massachusetts State website, and seek help.

Self-Employment Income & Child Support: Massachusetts vs. the National View

2011-11-04T10:12:00.002-04:00

We are pleased to link to an Article published by a colleague of ours, Jason V. Owens, Esq. of Stevenson & Lynch, P.C., in the June 2011 edition of the Suffolk Journal of Trial & Appellate Advocacy entitled Determining Self-Employment Income for Child Support Purposes: the Massachusetts View Compared with the National View. The article focuses on the thorny problem of calculating “income” for child support purposes in cases involving self-employed parents who operate a business over which the parent exerts financial control.

Much of the article explores the differences and similarities between “business income”, as defined by federal tax law, and “self-employment income”, as defined by child support guidelines in Massachusetts and other states. Much of the impetus behind this “compare and contrast” approach is practical. Determining a business owner’s “income” for child support purposes almost always begins with an examination of the business’s state and federal tax returns. The challenge for attorneys, parties, and judges often lies in determining which sections of the business’s tax returns can be applied to the child support analysis – and which sections must be carefully scrutinized or rejected altogether when analyzing the return from the child support perspective.

How does “business income” on a tax return differ from “self-employment income” on a financial statement filed in a child support case? Which tax deductible business expenses are most likely to be abused and manipulated by a self-employed parent? When can a business expense be legitimately deductible under the tax code but countable as “income” under child support law? The Article explores the legal underpinnings of these and related questions, identifies and pinpoints the prevailing law and national trends, and acknowledges the ambiguities and approaches taken among the states.

Reprinted with permission from Stevenson & Lynch, P.C.

And It's All Your Fault! MA "Fault" Based Divorce #7: Impotency

2011-11-01T12:38:00.002-04:00

This rarely-used ground for divorce illustrates why "no fault" divorces are heavily favored by modern practitioners. Judges are wary to turn the courtroom into a "Jerry Springer"-type environment. A divorce is an immensely personal transition. Given the social stigma of the word "impotency", there is a high risk that any divorce action citing impotency as its grounds will make it more difficult to come to any agreements with the allegedly impotent individual, and the courtroom could likely become a forum for uncomfortably personal critiques.

In a "no fault" divorce, the judge need only be convinced that there has been an "irretrievable breakdown" in the marriage with no chance of reconciliation. In practical terms, all that means is that one spouse needs to be able to tell the judge just that.

By contrast, in order to obtain a divorce citing impotency, the court needs to be satisfied that your spouse is incapable of having sexual intercourse. This can obviously be embarrassing to one or both spouses. Other than the added embarrassment, and the increased likelihood that the divorce proceedings will become more difficult to resolve, there is nothing else to gain. The division of property, child support, alimony, and visitation will not be affected by impotency. As such, very few practitioners choose to plead impotency when filing a complaint for divorce.

And It's All Your Fault! MA "Fault" Based Divorce #6: Adultery

2011-10-31T12:38:00.001-04:00

Of the "fault"-based grounds for divorce in Massachusetts, adultery is probably the most complicated. Many individuals seeking a divorce wish to prove to the court that their husband or wife cheated, and therefore was not a good spouse. This certainly affords an opportunity for those seeking to air their soon-to-be ex-spouse's dirty laundry, even requiring the paramour to be named as a co-defendant. However, it requires proving the existence of an extra-marital affair, and finding out all of the details of an affair could be more hurtful than helpful to the faithful spouse.

Further, the defense of "condonation" has the potential to defeat a complaint for divorce based on adultery. In essence, this defense claims that the faithful spouse forgave the unfaithful spouse, and should be prevented from now seeking a divorce based on adultery. For example, let's say that Pat is married to Alex. Pat has an affair with someone at work. If Alex can prove that Pat had an affair, then Alex could obtain a divorce on grounds of adultery. However, if Pat wishes to defend against the complaint for divorce and remain married, Pat could use the defense of condonation if Pat can prove that after Alex learned of Pat's affair, Alex and Pat continued to live together and continued to have marital relations. If Alex was unsure about proving that the affair happened, or whether Pat could successfully defend by claiming condonation, and Alex really wants to obtain a divorce, Alex should file for a "no-fault" divorce instead.

There is no such defense to a "no-fault" divorce. All that is required is one spouse has to be able to tell a judge that there has been an irretrievable breakdown in the marriage with no chance of reconciliation.

In addition, adultery is still technically a crime in Massachusetts. This means that the defendant in a "fault" divorce based on adultery and the paramour can refuse to testify to any relations based on their 5th Amendment right not to incriminate themselves in a crime. This makes it more difficult to meet the evidentiary burden required to obtain the divorce and in the long run may not be worth the effort over the simplicity of a "no-fault" divorce.

Upcoming Seminars and Workshops: Social Security, Estate Planning, and Divorce

2011-10-28T15:37:00.006-04:00

The friends of Kelsey & Trask, P.C. are offering some great upcoming seminars and workshops to help members of the public understand their options better when it comes to legal issues. From time to time we will try to let you know about these opportunities. Here are three that we recommend in November:

Social Security and Retirement Planning: Social Security Workshop at Council on Aging

Concord, MA - Senes & Chwalek Financial Advisors is pleased to present Kurt Czarnowski, former New England Regional Communications Director for the Social Security Administration, who will present “Social Security and Retirement Planning” at the Concord Council on Aging on Monday, November 28, 2011 at 6:30 pm.

Social Security's retirement program has been a basic part of American life for more than 76 years. Because we're living longer, healthier lives, we can expect to spend more time in retirement than our parents and grandparents did, and achieving a secure, comfortable retirement is much easier when you plan for your future.

But, despite the age, the size, and the economic impact of the Social Security system, the myths and misunderstandings about what the program is, as well as what it isn’t, are sizable. Social Security benefits were never intended to be someone’s sole source of income. Instead, they should be seen as the foundation on which to build a secure retirement.

Mr. Czarnowski worked for the SSA from 1976 until his retirement in 2010. As Regional Communications Director, Czarnowski was responsible for coordinating the Social Security Administration’s public affairs/public information activities in the six New England states. In this role, he was a frequent speaker at local and regional events for members of the public, and in 2010, he was the featured presenter on “Social Security: Your Retirement Planning Questions Answered,” the Social Security Administration’s national webinar for financial service professionals. He will provide an overview of the Social Security program and will help attendees better understand the important role it plays in achieving their retirement dreams.

Senes & Chwalek Financial Advisors is located at 57 Main Street, Concord. Renee W. Senes and David Chwalek are registered representatives of Investors Capital Corporation, Member FINRA/SIPC. For more information, please contact them at 978-369-2255.

Peace of Mind Planning for Parents Workshop

Hingham, MA - By popular request, Attorney Danielle G. Van Ess, will be repeating her Peace of Mind Planning for Parents workshop in just a few short weeks on Wednesday, November 16, 2011 from 7:30-9pm in Hingham.

If you missed the last one, here's your opportunity to attend. If you have friends who might be interested, please share this with them through email, Facebook, or however you reach them!

Registration is required, attendance is limited, and where applicable, both spouses are strongly encouraged to attend together. So line up your babysitters now and write down some questions you want to ask her.

You can learn more details about the workshop and register online here: http://peaceofmindforparents.eventbrite.com.

Divorce in Massachusetts: A 4-Part Weekly Public Education & Discussion Seminar Series

Needham Beth Israel Deaconess Hospital – Cardiology Conference Room - 148 Chestnut Street, Needham, MA 02492

Nov. 8, 2011 – Dec. 6, 2011; Tuesdays from 7:00 P.M. to 9:00 P.M.

FREE – ($20 per session suggested donation)

Who is the Seminar for?

This 4-Part Seminar Series is intended for people contemplating or going through a separation or divorce. Our members, including attorneys, therapists, mediators, and financial experts will provide you with valuable information about the divorce process in Massachusetts. There is the opportunity for Questions and Answers after each session.

What will you Learn?

Session I – The Divorce Process - Tuesday, November 8, 2011 7-9PM

- Where and how to begin:
- What needs to be filed and where?
- What is Mediation?
- What is Collaborative Law?
- How do I find the right professionals?

Session II – Finances, Assets & Alimony - Tuesday, November 15, 2011 7-9PM

- What is marital property:
- What is an equitable division?
- How do taxes affect the process?
- Will my House be sold?
- What is a QDRO?
- What is alimony?

Session III – Children & Divorce - Tuesday, November 29, 2011 7-9PM

- How much will child support be?
- How long will child support be paid?
- What is a Guardian Ad Litem?
- How do I create a parenting plan?
- What does custody mean in court?
- How do I minimize the trauma on children?

Session IV – After Divorce - Tuesday, December 6, 2011 7-9PM

- How do I get through the Divorce?
- What are some coping strategies?
- Can a divorce judgment be modified?
- How do I enforce the judgment?

REGISTER ONLINE

And It's All Your Fault! MA "Fault" Based Divorce #5: Refusal to Provide Suitable Support

2011-10-28T12:37:00.001-04:00

Technically, one can seek a divorce from a spouse by pleading that their husband or wife has "grossly or wantonly and cruelly refuses or neglects to provide suitable support and maintenance." This ground for "fault" divorce has a companion action: an action for separate support. However, a complaint for separate support only deals with support payments, and does not provide for the division of assets and the dissolution of a marriage, as this rarely-used ground for divorce does.

This ground for "fault"-based divorced is rarely used for a few reasons. First, there is no advantage gained when compared to a "no fault" divorce. Second, proving that your spouse has either grossly or wantonly and cruelly not provided suitable support is a very difficult. Simply putting one spouse on a very limited allowance or refusing to allow access to bank or credit card statements doesn't meet this evidentiary burden. You also have to prove that the spouse who has allegedly refused or neglected to provide suitable support actually has "sufficient ability" to provide support. This needs to be an intentional (and I would argue complete) economic abandonment.

When dealing with alimony and the division of property, any divorce action claiming that one spouse has grossly or wantonly and cruelly refused to provide suitable support and maintenance, or one filed on "no fault" grounds but with identical facts, will likely have a motion for temporary orders filed soon after the complaint seeking temporary alimony payments.

And It's All Your Fault! MA "Fault" Based Divorce #4: Intoxication

2011-10-27T10:00:00.001-04:00

In order to prove this "fault"-based ground for divorce, you need to convince the court that your spouse has "gross and confirmed habits of intoxication caused by voluntary and excessive use of intoxicating liquor, opium, or other drugs." The potential benefit of filing for divorce on this ground is to highlight the issue of drug or alcohol use which could also be relevant to any custody arrangement for children.

This is not to say, however, that a court would treat a case filed on "no fault" grounds any differently if one parent has an addiction that might affect his or her ability to care for the children. If custody is contested, the court will have to look at both parents to determine what is in the best interests of the children, regardless of whether the case if filed as a "no fault" divorce or a "fault"-based divorce. Because of this, along with the difficulty of proving a "gross and confirmed habit of intoxication," this ground for divorce is rarely used in favor of "no fault" divorce.

And It's All Your Fault! MA "Fault" Based Divorce #3: Imprisonment

2011-10-26T10:00:00.002-04:00

This "fault"-based ground for divorce goes hand-in-hand with a finding of "guilty" in a criminal matter, followed by a sentence of five years or more in prison. It is not the amount of time that is actually served, but rather what the sentence is that matters. Proving this grounds for a fault divorce is generally straightforward.

Interestingly, if after a divorce, the imprisoned spouse is pardoned for his or her crime(s), the marriage is not restored.

As with most grounds for divorce, there is no advantage over "no fault" divorce. Proving that a spouse has been sentenced to five or more years in prison is slightly more difficult than meeting the evidentiary burden required in a "no fault" divorce (only that one spouse is able to tell the court that his or her marriage is irretrievably broken down with no chance of reconciliation).

And It's All Your Fault! MA "Fault" Based Divorce #2: Desertion

2011-10-25T10:00:00.001-04:00

Desertion is one of two "fault"-based grounds for divorce that is used with some regularity in Massachusetts (the other being cruel and abusive treatment). In order to prove desertion, you need to be able to show that your spouse voluntarily left home without justification at least one year prior to filing the complaint for divorce, and has no intention of returning home. The spouse seeking a divorce needs to be able to testify that, during the one year period after his or her spouse left the marital home, there was hope of reconciliation.

Service of the complaint where personal service by a constable is impossible (because the location of the deserting spouse is unknown to the deserted spouse) is accomplished by publishing notice of the divorce case in a newspaper located in the location where the now-missing spouse was last known to reside.

The advantage of pleading "desertion" over a "no fault" divorce is that the act of deserting could warrant an unequal distribution of the assets. If successful, you have convinced a judge that your ex-spouse did not have justification for leaving, but left anyway, and that could result in the Judge awarding you property that they deserted as well.

The disadvantage is that proving desertion is somewhat more complicated than a "no fault" divorce. You must prove the elements of desertion to be divorced on those grounds, and if you fail to prove that the deserting spouse left without good reason, for example, then the Judge could deny your divorce. "No-Fault" divorce is much easier to prove because the evidentiary burden is met when one spouse simply tells the court that the marriage has been irretrievably broken down with no hope of reconciliation.

And It's All Your Fault! MA "Fault" Based Divorce #1: Cruel and Abusive Treatment

2011-10-24T10:00:00.001-04:00

Since August 2010, "no fault" divorce has been available in all fifty states. Prior to the creation of "no fault" divorce, an individual seeking a divorce would need to file and prove a "fault"-based ground for divorce, proving to the court that it was the other spouse's fault. This resulted in bringing an often already-contentious relationship into the adversarial forum of a courtroom.

"No fault" divorces shift the focus from who is at fault to facilitating the transition to life after marriage. Basically, the court cares about who gets what, planning for where the kids are, and whether there is a support order (child support or alimony), and less about whether the husband or wife ruined the relationship.

In Massachusetts, "no fault" divorce has been the law since the 1970s, and has become favored by judges and attorneys. However, Massachusetts does retain the following traditional "fault"-based grounds for divorce:

1. Cruel and Abusive Treatment
2. Desertion
3. Imprisonment for More than Five Years
4. Gross and Confirmed Habits of Intoxication
5. Grossly or Wantonly and Cruelly Refusal or Neglect to Provide Suitable Support and Maintenance
6. Adultery
7. Impotency

While only the first two are still used with any consistency, the other five "fault"-based grounds still exist. Over the next few days, we will break down all seven "fault"- based grounds for divorce in Massachusetts, and the advantages and disadvantages of each, starting with cruel and abusive treatment:

Cruel & Abusive Treatment:

Cruel and abusive treatment is the most common "fault"-based ground for divorce in Massachusetts. Prior to "no-fault" divorce, cruel and abusive treatment was used in most divorce cases because the standard is vague enough to allow a divorce when there was no other alternative. Today, cruel and abusive treatment cases usually involve a history of domestic violence.

As with any "fault"-based ground for divorce, this ground could put the defendant spouse on the defensive and will likely prevent settlement. Although cruel and abusive treatment does not require proving a crime, it does require admission or proof of some behavior that amounts to the standard and not too many people will readily admit to being abusive. For these reasons it is usually advisable to plead "no-fault" divorce even when there has been cruel and abusive treatment. Conduct can still be admitted as evidence if relevant to the property division, but by beginning the case as a "no-fault" case you make settlement much more likely.

Can I Modify my Alimony under the New Law? - A FlowChart

2011-10-12T13:00:00.001-04:00

UPDATE: This infographic has been updated for greater accuracy: http://kelseytrask.blogspot.com/2011/12/modification-under-alimony-reform-act.html.

<a href='http://familylaw.kelseytrask.com/blogimages/AlimonyModificationFlowchart.jpg'><img style='display:block; margin:0px auto 10px; text-align:center;cursor:pointer; cursor:hand;width: 500px; height: 1850px; border-width:0px;' src='http://familylaw.kelseytrask.com/blogimages/AlimonyModificationFlowchartsm.jpg' alt='' title='Click for Full Graphic'></a>

Click here for more information about Modifications in Massachusetts.

Infographic: The Alimony Reform Act of 2011 - Simplified

2011-10-11T18:01:00.004-04:00

<a href='http://familylaw.kelseytrask.com/blogimages/MassachusettsAlimonyReform.jpg'></a>

Click here for more information about Alimony in Massachusetts.

How long does it take to get Divorced?

2011-09-29T11:45:00.005-04:00

The length of time between the beginning of a divorce case and the completion of the case varies greatly. The shortest amount of time it can take you to get divorced is about 5 months, while the longest can be years (my longest case so far was almost 6 years). The variation is mostly due to how you choose to resolve your divorce case, and how much you and your spouse disagree about the division of assets or custody of children.

Variation due to Type of Case: Private Resolution v. Court

You and your spouse can resolve your case by settlement out of court in three primary ways:

Direct Negotiation: Either directly with each other, or though counsel, you and your spouse can negotiate a divorce settlement without going to court. If you can reach an agreement on all issues, then you will still have to present a written agreement to the court which details your agreement.
Collaborative Divorce: If you cannot negotiate directly, and want to use counsel, the Collaborative Divorce process allows you to negotiate with an assurance that your attorneys are also committed to out-of court settlement (because they agree not to go to court as part of the Collaborative process agreement). The goal of a Collaborative Divorce is also to result in a written agreement which is then presented to the court for approval.
Mediation: Mediation is a process that allows you to negotiate directly with your spouse, but still have the assistance of a neutral person to help provide information about the process and referee disputes. The goal of a mediation is also to result in a written agreement which you present to the court for approval.

In all of these scenarios the agreement is filed with a Joint Petition for Divorce under Section 1A of M.G.L. c. 208. The Court will set a date and time for an uncontested divorce hearing. In most cases, both you and your spouse must attend the uncontested divorce hearing and testify under oath that your marriage has suffered an irretrievable breakdown. The Judge will then issue Findings of Fact and if the Judge finds that your marriage is irretrievably broken down, then a Judgment of Divorce Nisi will issue after thirty (30) days, and it will become Absolute after a further ninety (90) days.

This means that if you file a Joint Petition for Divorce you are not legally and officially divorced until 120 days after the divorce hearing date.

Total Time to Get Divorced = Time to Settle + Hearing Date Waiting Period (20-30 days) + 120 days.

Court Resolution:

Under Section 1 or 1B of M.G.L. c. 208, if only one person in the marriage is ready to tell the Court that the marriage is over, or if you cannot agree with your spouse on other issues related to the divorce (such as the division of property, custody of children, amount of support, etc.), then you must file a Complaint for Divorce. The Court has time standards that govern the range of time that your case should take to get from filing to trial. Time standards requires that a case be heard within 14 months, but application of these standards varies and if discovery takes longer than usual then you may not be heard within 14 months.

If the parties are unable to settle their divorce case, then at the end of discovery a trial will be held, and after reviewing both parties' proposals and the evidence, the Court will issue a Judgment of Divorce Nisi and it will become Absolute after a further ninety (90) days.

Total Time to Get Divorced = Time between Complaint for Divorce filed and Settlement or Trial Date + 90 days.

Variation due to the length of the FIGHT:

Whether you settle or go to trial your case will take longer if you make it difficult for the other person to obtain information or if there are complicated issues. When settling out of court you control how quickly your case moves based on how quickly you provide each other with information and how quickly you reach agreements.

The divorce process in court can take much longer because when disagreements arise, you must wait for the court's schedule to allow for resolution. At the very least, absent an emergency, it usually takes at least a few weeks to get into court, even just to deal with one contested issue. Furthermore, court is often delayed by discovery issues that require more time, such as business valuations or custody investigations.

What is the average length of time these issues take?

A simple case, with only some contested issues, will still typically take 8 months to 1 year to settle through court. Through mediation or collaborative divorce, a simple case will usually require 2-3 meetings, which typically takes 2-3 months to resolve.

A complicated case or a case with numerous contested issues will obviously take longer. On average these cases still resolve through court in 1-2 years, but can go longer. Through mediation or collaborative divorce, a complicated case will require more meetings but will still likely be shorter than the court process.

The New Massachusetts Alimony Law in a Nutshell

2011-09-27T19:35:00.011-04:00

As expected, Massachusetts Governor Deval Patrick signed into law the Alimony Reform Act of 2011 yesterday.

The new law, which becomes effective March 1, 2012, makes significant changes to alimony in Massachusetts. Here are just some of the changes:

The new law defines multiple types of alimony:

Types of Alimony Defined:

General Term Alimony: periodic payment of support to a recipient who is economically dependent.

Rehabilitative Alimony: periodic payment of support to a recipient spouse who is expected to become economically self-sufficient by a predicted time, such as, without limitation, reemployment, completion of job training; or receipt of a sum due from the payor spouse pursuant to a judgment.

Reimbursement Alimony: periodic or one-time payment of support to a recipient spouse after a marriage of not more than five years and for the purpose of compensating the recipient for economic or noneconomic contributions to the financial resources of the payor spouse, such as enabling the payor spouse to complete and education or job training.

Transitional Alimony: periodic or one-time payment of support to a recipient spouse after a marriage of not more than five years and for the purpose of transitioning the recipient to an adjusted lifestyle or location as a result of the divorce.

The new law defines the maximum amount of Alimony:

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% of the difference between the parties gross incomes.

The new law also limits the duration of General Term Alimony:

General Term Alimony Ends Upon:

Remarriage of the recipient;
Death of the recipient;
Death of the payor (though the court may order life insurance or reasonable security for payment of sums due to the recipient in the event of the payor's death during the alimony term);
Except when the court finds that deviation is warranted, upon the expiration of the duration formula calculated above;
Upon the cohabitation of the recipient spouse with another person for a continuous period of at least three months (may also result in suspension or reduction instead of termination;
Upon the payor attaining the full retirement age 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.

The deviation factors which could result in a different amount or duration are:

Advanced age; chronic illness; or unusual health circumstances of either party;
Tax considerations applicable to the parties;
Whether the payor spouse is providing health insurance and the cost of heath insurance for the recipient spouse;
Whether the payor spouse has been ordered to secure life insurance for the benefit of the recipient spouse and the cost of such insurance;
Sources and amounts of unearned income, including capital gains, interest and dividends, annuity and investment income from assets that were not allocated in the parties divorce;
Significant premarital cohabitation that included economic partnership and/or marital separation of significant duration, each of which the court may consider in determining the length of the marriage;
A party's inability to provide for his or her own support by reason of physical or mental abuse by the payor;
A party's inability to provide for his or her own support by reason of a party's deficiency's of property, maintenance or employment opportunity; and
Upon written findings, any other factor that the court deems relevant and material.

Other Notable Provisions:

Factors to Determine Type, Amount and Duration of Alimony: the length of the marriage; age of the parties; health of the parties; both parties' income, employment and employability, including employability through reasonable diligence and additional training, if necessary; economic and non-economic contribution to the marriage; marital lifestyle; ability of each party to maintain the marital lifestyle; lost economic opportunity as a result of the marriage; and such other factors as the court may deem relevant and material.

Gross Income Shall Not Include: Capital gain income and dividend and interest income which derives from assets equitably divided between the parties under Section 34; and Gross Income already used to calculate Child Support.

Attributing Income: In determining the incomes of parties with respect to the issue of alimony, the Court may attribute income to a party who is unemployed or underemployed.

Remarriage of Payor: income and assets of the payor's spouse shall not be considered in a redetermination of alimony in a modification action.

Overtime or 2nd Job: shall not be considered if first job is full time, and additional income started after initial order.

Click here to learn more about Divorce, Mediation and Alimony.

New Same-Sex Divorce Resource

2011-09-26T13:30:00.002-04:00

In Massachusetts, same-sex marriage is a right, and that means, for some, same-sex divorce will follow. When the unfortunate happens, can same-sex spouses hire any divorce attorney? Do all the same laws apply to these couples?

You might think that the legalization of same-sex marriage means that these couples have all the same rights as opposite-sex couples, but you would be wrong.

Even in the Commonwealth of Massachusetts, the discriminatory laws and practices of the federal government and other state governments can cause legal problems for same-sex couples who are married here. In addition, because gay marriage is a relatively new right in the Commonwealth, we are still learning how the laws of divorce and separation will be applied to these marriages.

There is a new site dedicated to providing information about the specific issues involved in Same-Sex Massachusetts Divorce cases called: SameSexMassDivorce.com.

SameSexMassDivorce.com is a resource where same-sex spouses considering divorce or already involved in a divorce can learn about the differences that face a same-sex couple in a divorce case, custody case, child support case, or an alimony case. There is also a same-sex version of our unique Parenting Plan Worksheet tool.

How do I serve Divorce Papers on my spouse (at Fenway Park)?

2011-09-26T09:47:00.020-04:00

image from Globe Staff Photo / Barry Chin

As Red Sox pitcher Erik Bedard recently found out, how your ex chooses to serve you with family court papers can be private or very public. As described by the New York Post, Bedard was served with a child-support case by a constable (who happened to be a Yankees fan) at Fenway Park before taking the mound for the Red Sox last week. Serving him at work was not required, but might be your preference if you're a Yankees fan.

What are the requirements for service of Divorce or other Family Court Complaints?

Whether or not you tell your spouse you want a divorce before you serve them with the divorce papers is a personal choice (covered by our previous post: How should I tell my spouse that I want a Divorce?). Once a divorce (or other domestic relations) action is begun, though, there is a legal process to ensure that the opposing party is properly served with the Complaint. The Court will provide you with a Summons which must be served on the Defendant.

In Massachusetts, the requirements for service are covered by Massachusetts Domestic Relations Procedure Rule 4.

Rule 4 requires that service of the summons:

be performed by a "sheriff, by his deputy, or by a special sheriff; by any other disinterested person..." We typically use the "other disinterest person" in the form a Constable;
be accompanied by a copy of the Complaint; and
be made by having the Defendant accept service by signing in front of a notary, or by having the summons delivered to the Defendant personally (in their hands directly), except in the case of some types of complaints which can left at their last and usual place of residence and mailed (see Rule 4(d)(2) for a list of these complaints).

Once served, the Summons must be returned to the Court with proof of service (such as the notarized signature of the Defendant or a sworn statement of the serving constable). The Summons must be served within 90 days after the filing of the Complaint or the action could be dismissed.

If your spouse won't accept service then where you have them served is a matter of choice. Usually we serve people at home, but if we expect them to avoid service (by hiding or not answering their door) then we may be forced to serve them at work or some other public place they are known to hang out often. You may want to consider how serving your spouse at work or in front of their friends could be embarrassing. Although it was satisfying for the Yankees fan to serve Bedard at Fenway Park, it's probably not going to help the chance of that case settling.

Of course, this could also be a unique opportunity for the Jumbotron...

Budget Cuts Force Many Massachusetts Courts to Close Early

2011-09-21T10:44:00.005-04:00

Starting this past Monday, thirty-eight courts in Massachusetts began cutting hours for clerks and registers due to budget cuts, staff shortages, and backlogs. The reduction in hours are said not to affect court sessions and that staff offices will be available for emergencies.

The following district courts will have restricted counter and telephone coverage: Attleboro, Barnstable, East Brookfield, Fall River, Framingham, Haverhill, Ipswich, Lawrence, Lowell, Lynn, Malden, Natick, Newburyport, Palmer, Somerville, Springfield, Stoughton, Taunton, Uxbridge, Waltham, Westborough, Woburn and Wrentham.

The Western Division of the Housing Court and the Springfield Divisions of the Juvenile Court and Land Court will similarly have restricted counter and telephone coverage.

All Probate & Family Courts will have restricted hours after 3:00 P.M.

Source: The Patriot Ledger: "38 Massachusetts courts reduce public office hours because of budget cuts"

Update: Massachusetts Alimony Reform Closer to Becoming Law

2011-09-16T12:04:00.003-04:00

Yesterday, the Massachusetts House of Representatives passed the Senate version of the Alimony Reform Act of 2011, meaning that its only remaining hurdle before becoming law (although it has an effective date of March 1, 2012) is Governor Patrick's signature. Governor Patrick has previously indicated his support for the bill.

For more information about the Alimony Reform Act of 2011 check out MassAlimonyFormula.com

Custody Reform Summary: The Good, The Bad, and The Compromise

2011-09-01T10:00:00.001-04:00

There are currently six pending bills which would make significant changes to the current Massachusetts custody statute and they have all been reviewed in depth in this forum over the last few weeks. If you need a quick cheat sheet for how they compare, below you will find a table that summarizes the proposed changes in each bill.

For our recommendations, keep reading after the table.

Current Law	Proposed Bill	Proposed Change
P1 – P5 Definitions of Custody	S.659	Shared physical custody definition changed to state “child shall reside equally”, and adds definition of “parenting plan”.
	S.847	Definitions Deleted Entirely
	H.1306 & H. 2684	No Change
	H.1330
	H.2244
P6 – Rights of Parents held equal absent misconduct. Court shall consider adverse effects of past or present living situation.	S.659	Delete Paragraph Entirely
	S.847	Delete Adverse Effects Language, Add Requirement of Equal Time, Minimum Guaranteed Time Required
	H.1306 & H.2684	Delete Adverse Effects Language Only, Adds Parties are equal, and court should maximize exposure to each so far as practical
	H.1330	Add requirement to consider who is responsible for adverse conditions, and Add requirement for court to consider “rights of parents”
	H.2244	Delete Adverse Effects Language Only, Add Requirement of Equal Time
P7 – Presumption of temporary Shared Legal Custody absent emergency conditions, abuse or neglect (requires written findings for sole legal). No presumption of shared physical custody.	S.659	Add Presumption of Shared Physical Custody
	S.847
	H.1306 & H.2684
	H.1330
	H.2244
P8 – Court shall consider best interest of the child, and all relevant facts, including alcohol or drug abuse, and willingness of parties to cooperate.	S.659	Delete willingness of parties to cooperate as factor
	S.847	Standard for overcoming presumption is greater: “immediate physical or emotional danger” to children
	H.1306 & H.2684	Standard for overcoming presumption is greater: must show child would be harmed by shared custody; Change in availability of a parent or change in developmental state of child shall be sufficient for a Modification
	H.1330	If parties unwilling to cooperate order a dispute resolution plan
	H.2244	Delete willingness of parties to cooperate as factor, Standard for overcoming presumption is greater: must show clear and convincing evidence that parent is unfit.
P9 – Court must make written findings to order shared legal or physical custody if prior or current 209A restraining order.	S.659	Reverse Presumption - Court must enter written findings as to effects of the abuse on the child to not order shared physical custody
	S.847	Deleted
	H.1306 & H.2684	Deleted
	H.1330	Add that denial or vacating of 209A shall be binding and facts alleged therein shall not be used in custody determination
	H.2244	Deleted
P10 – No Presumption of Shared legal or physical custody at trial on merits except under 31A.	S.659	Reversed. Presumption at trial of Shared Legal and Physical custody.
	S.847	Deleted
	H.1306 & H.2684	Reversed. Presumption at trial of Shared Legal and Physical custody.
	H.1330	Reversed. Presumption at trial of Shared Legal and Physical custody.
	H.2244	Deleted
P11-13 – Parties shall submit a detailed shared custody plan and court may accept, modify or reject the plan	S.659	Changed to Parties shall agree and if they do court must accept. If parties cannot agree court may issue its own plan.
	S.847	No Change
	H.1306 & H.2684	Court may only modify or reject the plan if child would be harmed by shared custody; Presumption of shared custody exists even if parties don’t submit proposals
	H.1330	Court may only modify or reject if preponderance of evidence shows that agreement would not be in best interest of children.
	H.2244	Court may only modify or reject if parent is unfit
P 14 – Award of shared legal of physical custody shall not affect a parent’s responsibility for child support and shall not constitute grounds for modification of support.	S.659	No Change
	S.847	No Change
	H.1306 & H.2684	Reversed: If Shared Physical Custody is ordered court shall revise child support order
	H.1330
	H.2244
P 15 – Right of Parents to access school or medical records	S.659	No Change
	S.847
	H.1306 & H.2684
	H.1330
	H.2244
P16 – Where parents have agreement court MAY enter it, or make specific findings that such an order is not in best interest of children	S.659	Court must accept agreement, or make specific findings that such an order is not in best interest of children
	S.847	No Change
	H.1306 & H.2684	Court may only modify or reject the plan if child would be harmed by shared custody
	H.1330	Court must accept agreement, or make specific findings of clear and convincing evidence that the order is not in best interest of children
	H.2244	Court must accept agreement

If you are interested in learning more about why we believe that some of these changes are practical and some aren't, read our previous posts evaluating each of the proposals individually. Based on all of these evaluations, we would propose a hybrid of these bills taking the best parts of each as follows:

Current Law	Our Proposal
P1 – P5 Definitions of Custody	No Change




P6 – Rights of Parents held equal absent misconduct. Court shall consider adverse effects of past or present living situation.	Delete Adverse Effects Language Only, Add Parties are equal, and court should maximize exposure to each so far as practical




P7 – Presumption of temporary Shared Legal Custody absent emergency conditions, abuse or neglect (requires written findings for sole legal). No presumption of shared physical custody.	Add Presumption of Shared Physical Custody




P8 – Court shall consider best interest of the child, and all relevant facts, including alcohol or drug abuse, and willingness of parties to cooperate.	Delete willingness of parties to cooperate as factor, Change in availability of a parent or change in developmental state of child shall be sufficient for a Modification




P9 – Court must make written findings to order shared legal or physical custody if prior or current 209A restraining order.	Add that denial or vacating of 209A shall remove any presumption against shared custody, though court may still consider alleged facts.




P10 – No Presumption of Shared legal or physical custody at trial on merits except under 31A.	Reversed. Presumption at trial of Shared Legal and Physical custody.




P11-13 – Parties shall submit a detailed shared custody plan and court may accept, modify or reject the plan	Court may only modify or reject joint plan if preponderance of evidence shows that agreement would not be in best interest of children.




P 14 – Award of shared legal of physical custody shall not affect a parent’s responsibility for child support and shall not constitute grounds for modification of support.	Reversed: If Shared Physical Custody is ordered court shall revise child support order pursuant to the Guidelines




P 15 – Right of Parents to access school or medical records	No Change




P16 – Where parents have agreement court MAY enter it, or make specific findings that such an order is not in best interest of children	Court must accept agreement, or make specific findings that such an order is not in best interest of children

To read more about Shared Parenting in Massachusetts, check out the following pages:

Parenting Plan Worksheet - Use this worksheet to help compare potential or proposed Parenting Plans on a user-friendly calendar.

Child Custody Mediation
Collaborative Child Custody Resolution
Child Custody Litigation

Custody Reform: Six More Proposals Varying in Practical Effect

2011-08-31T10:00:00.001-04:00

In addition to the six lengthy proposed custody reform bills that we have reviewed over the past two weeks, there are six other proposed bills which would affect the resolution of custody disputes, although they do not make changes to the custody statute directly. In this post, we will summarize each of these proposals briefly and indicate how they could, at least in some indirect way, influence custody reform.

H.2851 – Legislation relative to mediation of divorce cases involving children.

This bill proposes adding a new statute to M.G.L. ch. 208: "SECTION 28B. Mediation of cases involving children". This new statute would allow the court to order the parties to participate in mediation in all custody disputes between parents (or grandparents). If mediation is ordered, all disputed issues (such as property division or alimony) will also be mediated. Parties are required to participate in said mediation "in good faith."

However, the "mediator has no authority to make a decision or impose a settlement upon the parties... Any settlement is entirely voluntary. In the absence of settlement, the parties lose none of their rights to a resolution of their dispute through litigation."

The proposed bill does allow some deviation allowing the court not to order mediation when there are circumstances such as abuse, undue hardship or drug abuse. Also, the court shall not order mediation if there is an active restraining order.

Clearly, the goal of this proposal is to force parties to try mediation, but in no way change their rights to litigation. While this is a laudable goal, the reality is that many cases won't settle, even with mediation. Is forcing mediation on people the right solution? How can the court "order the parties to participate in mediation" and have the settlement still be voluntary? This essentially amounts to bullying, but bullying that is worth it if you truly believe that mediation is that powerful of a tool.

Participation in mediation has been linked to increased involvement of non-custodial parents with children after divorce. However, this increase is based on voluntary mediation. Whether or not forced mediation will result in similar positive results is unknown, though it seems likely that there would at least be some benefit for at least some cases.

H.1305 – Legislation relative to child care involvement of non-custodial parents

This proposal amounts essentially to a right of first refusal for non-custodial parents before a child is placed in childcare. "If the court determines that the non-custodial parent is available, capable, and desirous of providing all or part of said childcare for the child or children for whom support is ordered, the court shall include in its order provisions allowing the non-custodial parent the right to provide such child care."

Similar provisions are sometimes included in agreements between parents to allow a non-custodial parent greater time with the children when the custodial parent is unavailable. However, the proposed bill is a little vague as to what counts as "childcare." Is preschool considered "childcare" or is preschool considered school, which carries benefits such as socialization. The idea is a good one, but needs to be refined.

S.0691– Legislation relative to parental choice of terminology in certain domestic relations matters. (H.2258– Legislation relative to parental choice in child custody agreements.)

This Senate and House proposal are essentially the same, and we will therefore summarize them together. These bills propose adding a new statute to M.G.L. ch. 208: "Section 31B. Parental rights and responsibilities; parenting plans; use of terms."

The proposed new statute would allow parties to use alternative terms for custody. These terms are defined in the proposal, essentially just replacing the term legal custody with "decision making responsibility" and physical custody with "primary residential responsibility". The proposal also includes a definition for "parenting plan."

The bill makes no requirements on the courts and would therefore be mostly window-dressing in our opinion. Allowing parents to use different, more "PC", terms doesn't really change the underlying reality. We already advise our clients to focus on the parenting plan first and the terms second, because how you actually parent your children is more important than the labels.

H.3289 – Legislation relative to the modification of custody orders involving parents called to active military service.

This proposed bill would prohibit courts from modifying parenting plans while a parent was on active duty military service, except for temporary orders deemed necessary to protect the best interest of the child. If a temporary order is made during the active duty period, the original plan will be reinstated upon the parent's return from active duty, and the active duty will not be considered in any modification determination.

This bill will have limited applicability, because most parents aren't facing this issue, but the protection of parental rights for members of the active duty military makes sense. The only potential issue we see with this language, is that it may make sense to allow some transition period back to the old parenting plan if the active duty military parent has been gone for a relatively long time. For example, a young child who hasn't seen a parent for a year, will need some time to get used to them again. This may not seem fair, but it is more realistic. This change could be made by adding only one line to address such a reasonable transition.

H.3289 – Legislation to prohibit certain activities within the home until a divorce is final and financial and custody issues are resolved.

The proposed bill is pretty straightforward:

In divorce, separation, or 209A proceedings involving children and a marital home, the party remaining in the home shall not conduct a dating or sexual relationship within the home until a divorce is final and all financial and custody issues are resolved, unless the express permission is granted by the courts.

Due to the length that some cases can drag out, this may not be practical in its blanket form. In addition, in cases where this type of order is appropriate, Judges are typically willing to make such an order. Changing the presumption to limit the rights of all individuals without a court finding in a particular case seems a bit overreaching and unnecessary. Given that the majority of these custody reform statutes are geared more towards less court oversight rather than more, this proposal stands out as superfluous and not likely to be recommended by the Judiciary Committee.

To read more about Shared Parenting in Massachusetts, check out the following pages:

Parenting Plan Worksheet - Use this worksheet to help compare potential or proposed Parenting Plans on a user-friendly calendar.

Child Custody Mediation
Collaborative Child Custody Resolution
Child Custody Litigation

Custody Reform: H.2244 - Does Equal Time Make Equal Parents?

2011-08-30T10:00:00.001-04:00

HO1330 is the third House bill which proposes to make amendments to the current custody statute. This proposal was filed in the House on January 21, 2011 and referred to the Joint Committee on the Judiciary on January 24, 2011.

H.2244 – Legislation relative to the rights of parents in child custody proceedings.

This proposed bill is split into seven sections, each one making a specific amendment to one paragraph of the current bill. The clear trend of this proposal is a focus on parent's rights instead of the "best interest of the child" standard.

Section 1 deletes paragraph 6 of the current statute. First off, this means that the definitions of custody are kept in tact. Instead of considering the happiness and welfare, and past and present living situations, though, this proposal would have the court consider the following factors when determining custody:

Section 31 of Chapter 208 of the General Laws, as appearing in the most recent edition, is hereby amended by striking the sixth paragraph and inserting in place thereof the following paragraph:- “In making an order or judgement relative to the custody of children, the rights of the parents shall, in the absence of abuse or neglect, be held to be equal. Concomitant with the equal rights of parents is the right of the child(ren) to spend equal time with each parent.”

This bill would create a "right of children" to spend equal time with both parents. This right does not currently exist, and though some argue it should, there is significant problems with this standard when applied to all ages and all situations.

As we have discussed in previous posts, the simplest example is a newborn child. This proposal makes no exception for newborns, but equal time with newborns is impractical and against the best evidence we have on child developmental needs. We don't mean to imply that newborns should always be with mothers, but only that a newborn's sleep and eating schedule typically requires one primary caretaker parent (whether the mother or father) and frequent often contact with the other parent.

Other situations can make equal time impractical or not in the best interest of children as well, and therefore making equal time an absolute right in all cases puts the desires of parents ahead of the needs of children.

Section 2 follows the equal time presumption with a presumption of shared legal and physical custody absent clear and convincing evidence of abuse or neglect, and deletes the current less strict presumption language. This is consistent with the equal time provisions above, though not as far reaching as those requirements.

Section 3 deletes language allowing the court to limit shared custody based on all relevant factors, an admittedly broad standard, and it replaces it with a more strict standard:

Said section 31 is hereby further amended by striking the eighth paragraph and inserting in place thereof the following paragraph:- “Fit parents by definition and by virtue of the natural, immutable bond they share with the child(ren), both define and act in the best interest of the child(ren). Absent clear and convincing evidence that either parent is unfit, each parent shall be presumed to be fit, and as such the court shall order temporary shared legal and physical custody of the child(ren).”

Essentially, the Court still has broad discretion to determine parental fitness, but this is a much stricter standard than examining only the best interest of a child. Similar to the presumption of biological parents over non-biological parents in guardianship cases, this standard would create a presumption that both parents have equal time in conjunction with Section 1 absent strong evidence otherwise.

Section 4 deletes the restraining order presumption language completely, and also deletes the lack of any presumption at trial language. Deleting the restraining order presumption language completely is something we have discussed in reviewing the other proposed bills. Essentially a complete deletion or reversal of this paragraph ignores the danger domestic violence poses to children, in favor of erring on the side of parental rights. Compromise is possible on this section, but complete deletion goes too far.

Section 5 creates a presumption in favor of any shared custody plan whether filed jointly or by either party:

Said section 31 is hereby further amended by striking the twelfth paragraph and inserting in place thereof the following paragraph:- “At the trial on the merits, the court shall consider the shared custody implementation plans submitted by the parties. In conjunction therewith, absent clear and convincing evidence that either parent is unfit, the court must accept the shared custody implementation plan submitted by the parties jointly. Absent a jointly submitted shared custody implementation plan, the court must accept the shared custody implementation plan submitted by either party.”

The final line of this paragraph is confusing because it would appear to require the Court to accept a shared custody plan even if only submitted by one parent. This means that if one parent submits a shared custody plan, and the other does not, then the shared plan will automatically be accepted. There is no discretion left for a Judge to use common sense if the proposed plan is clearly inappropriate or problematic, unless the court finds that parent unfit. Support of this presumption requires a belief that a parents rights should always trump the oversight of the courts, even if the plan they are proposing would cause harm to the children.

Section 6 amends the child support presumptions:

Said section 31 is hereby further amended by striking the fourteenth paragraph and inserting in place thereof the following paragraph:- If shared physical custody is ordered, the judge shall at that time make a child support order, or revise its previous order, as appropriate to the circumstances.”

As we have previously indicated, this type of change at least eliminates the inconsistency between the current statute and the Massachusetts Child Support Guidelines.

Finally, Section 7, similar to section 5, requires the court to enter any custody agreement reached by the parties, without any authority to amend or reject it.

Conclusion:

This proposed bill would eliminate almost all judicial discretion regarding custody determinations except when one or both parents are unfit. Again, approval of this type of change requires a belief that the Judges should not have any oversight over the custody of children when the parents are unreasonable, unless they are completely unfit. This position is inconsistent with other statutes, such as the guardianship statute. But since it is ideologically based there is little room for compromise.

This extreme restriction of judicial power is not a position that we support, but we recognize why parents in certain situations may feel that this type of radical change is necessary. The power of Judges to make decisions relating to the custody of a parent's children under the current statute can be very upsetting for parents. This is one of the reasons that we encourage parents to seek alternative dispute resolution through Mediation or Collaborative Divorce.

This proposal goes even farther, though. It wouldn't just take power away from Judges, in the end, this proposed bill also takes an extreme position that equal time is more important than all else (except in abuse and neglect cases). This only makes sense if the ideology behind it is that equal time with both parents is in the best interest of the child in all situations. This is simply not the case at all ages and all situations.

Even if you believe that restrict the discretion of Judges is necessary, this concern could be addressed with parenting plan guidelines that are more specific. 50/50 parenting time in all situations is arbitrary and doesn't recognize different developmental stages or other circumstances. If the goal is to reduce judicial discretion, then we believe enacting guidelines similar to the Model Parenting Plans would make more sense than a blanket 50/50.

To read more about Shared Parenting in Massachusetts, check out the following pages:

Parenting Plan Worksheet - Use this worksheet to help compare potential or proposed Parenting Plans on a user-friendly calendar.

Child Custody Mediation
Collaborative Child Custody Resolution
Child Custody Litigation

Custody Reform: H.1330 - Can Court Ordered Mediation be Effective?

2011-08-29T10:00:00.004-04:00

HO1330 is the second House bill which proposes to make amendments to the current custody statute. This proposal was also filed in the House on January 20, 2011 and referred to the Joint Committee on the Judiciary on January 24, 2011.

H.1330 – Legislation relative to the determination of the legal custody of children in court cases.

Unlike the first House bills we reviewed (H.1306), this proposal doesn't change the best interest standard, but still adds a presumption of temporary shared physical custody.

This bill begins by deleting the current statute and replacing it entirely, however much of the text remains the same. The definitions of custody remain in the proposed bill, as does the presumption of temporary shared legal custody.

The bill adds the "rights of the parents" to the factors that the court should consider in creating parenting plans. The proposal keeps the language allowing the Judge to consider adverse affects of the past or present living situations but adds language requiring the court to consider "who was responsible" for this conduct. The addition is understandable, but from a practical standpoint if the court was considering negative conduct then who was at fault was already being considered as well.

Temporary Shared Physical Custody and Required Dispute Resolution

The bill also adds a presumption of temporary shared physical custody, and still allows a Judge to order sole custody if shared custody is not in the best interest of the child with the addition of requiring written findings of any such decision. This means that the standard is not changed but that the Judge must specifically write in the order how they applied the standard.

The next section of the proposed bill makes the most significant change to the current statute, by adding more specific language as to what factors the court should consider in denying shared custody:

In determining whether temporary shared legal and/or physical custody would not be in the best interest of the child, the court shall consider all relevant facts including, but not limited to, whether any parent abuses alcohol or other drugs, has deserted the child or alienated the children toward the other parent; but a history of the parties inability to cooperate will not be determinative of the issue of custody. If there are facts of a lack of cooperation or by agreement of the parties, the agreement or order must contain a provision for resolution of matters of dispute in the future during joint legal or physical custody by final alternative dispute resolution a) arbitration in accordance with the provision of c. 105C in this court, b) by agreement, or c) presentation of the issue in dispute only to the probate court by complaint pursuant to c. 231A for future resolution and an enforcement order. Such alternative dispute resolution must be tried and fail before a modification can be entered in this regard. Orders described herein after hearing or trial and or an agreement enforced by the court shall be considered a final judgment notwithstanding future dispute resolution provisions are included therein. In addition it shall be grounds for modification of custody and the awarding of counsel fees to the other party, if a parent is found to have persistently and/or in bad faith, failed to carry out the terms of the said joint custody order or engaged in parental alienation in regard to the other parent with a child.

In addition to enumerating more specific factors, this section requires dispute resolution, and wouldn't allow the court to deny shared custody because of one parents failure to cooperate with communication. This is a major complaint about the current statute. The motivation behind requiring better communication and better efforts towards communication is noble, but the practical implementation of this section may not be realistic.

Unless the Courts can budget for dispute resolution services (unlikely), then many litigants will not be able to afford the required dispute resolution services. In principal this is a statutory recognition of a failure of the court to properly resolve these matters, and in that way feels like an admission of failure. Wouldn't it be better to improve the court system than to require people go elsewhere?

One possible compromise, for example, would be to allow Judges the authority to appoint Parent Coordinators. Another possible solution would be to revamp the required Parenting Course to include dispute resolution training.

Restraining Order Presumption

This proposed bill also makes changes to the language relating to restraining orders in the original custody statute. We have already discussed our concerns about proposals which delete this standard altogether (or in some cases reverse it). In this case, this proposed bill offers a compromise between keeping the presumption and deleting it:

If despite a current or permanent restraining order against one parent pursuant to chapter two hundred and nine A being in effect, the court orders shared legal or physical custody either as a temporary order or at a trial on the merits, the court shall provide written findings to support such shared custody order and cause the 209A order to be amended in regard thereto. The denial, or vacating of such an order first issued in a prior 209A matter by any court, shall be binding on this court, and the facts alleged or which could have been alleged, shall not be permitted to be considered again in regard to its custody or visitation determinations under this section. The definition of ‘abuse’ shall be the same in custody and visitation matters as defined by c. 209A.

This paragraph would keep the presumption against shared custody when a 209A order is currently in effect. But if the 209A order is denied or vacated, that decision shall be binding on the Family Court and the alleged facts cannot be then reiterated in the custody hearing. This change makes an attempt to weigh the desire to protect children from abusers, with an attempt to protect the wrongly accused from having to defend themselves in multiple courts from allegations already found false by a previous court.

There are still some potential problems with this compromise, though. If a 209A request is vacated or denied, this only means the facts presented don't rise to the level to require Protection from Abuse. This doesn't mean the facts are necessarily false or irrelevant for custody determinations. For instance, what if a mother requests a 209A because the father is a drug addict and the mother is in fear because of the unpredictable nature of his addiction. A Judge could reasonably find, without more evidence of past physical violence or threats of violence, that drug addiction is not enough to warrant a 209A Protection from Abuse. Under a strict reading of the proposed language, the facts presented at the 209A hearing can not then also be considered by the Family court in custody determinations, even though they are clearly relevant.

The intent of this proposed language is good, but the application could be impractical. There is a way to draft the language to reach a compromise more appropriately. For example, rather than disallowing the entry of the facts in evidence, the requirement of written findings is deleted if the 209A is denied or vacated and the presumption for shared custody remains in this case. This would be an appropriate compromise that wouldn't keep the Judges from hearing relevant evidence, but still prevent parties from using false restraining orders to obtain a custody presumption.

Permanent Shared Physical and Legal Custody:

The proposed bill keeps the requirement for the submission of parenting plans at trial if there is a custody dispute, but adds a requirement that said plans contain dispute resolution provisions. In addition, the proposed bill would add a presumption of shared legal and physical custody at trial:

There shall be a prima facie presumption in favor of shared legal and physical custody in determining final custody and visitation on the merits, at trial by agreement and/or at a hearing.

In addition, the standard for overriding a joint plan proposed by the parties is significantly higher under this bill:

If the plan is submitted by the agreement of the parties jointly, the court may not reject such a joint custody plan submission and issue a sole legal and/or physical custody award, unless there is a preponderance of the evidence submitted sufficient to overcome the presumption of shared custody or to support an amendment to the joint plan, and the court issues findings of fact and law giving its reasons for such actions.

As discussed in previous posts, Judges don't usually deny jointly created custody plans anyway, so raising the standard is unnecessary but also a non-issue.

Child Support

The proposed bill also reverses the Child Support section to require reconsideration if there is a change to shared custody:

An award of shared physical custody shall be considered in determining the amount of child support owed by either parent based on the time the children are supported by either of them when in their residences under the plan and the economic circumstances of the parties. An order of shared custody shall constitute grounds for modifying a prior support order based on sole custody if there is a demonstrated economic impact that is a sufficient basis to warrant modification, or may be the basis for changed orders during joint custody if the economic circumstances of either of the parties shall change in the future.

This is consistent with the current Child Support Guidelines and makes more sense than the current statute.

Finally, the proposed bill also adds the preponderance of the evidence standard to the appeals section C. 215 Section 9.

Conclusion:

Good Intentions, Bad Law. The premise of many of the changes made her makes sense, and we even support the attempt to compromise on the controversial restraining order issue. However, the language of the proposed bill creates impractical requirements to accomplish these changes. The restraining order section should be rewritten, and there should be greater investigation into the best way to foster conflict resolution (other than required dispute resolution services).

This bill is a step in the right direction (and better than most we've reviewed so far), but still needs some work to have the practical effect intended.

To read more about Shared Parenting in Massachusetts, check out the following pages:

Parenting Plan Worksheet - Use this worksheet to help compare potential or proposed Parenting Plans on a user-friendly calendar.

Child Custody Mediation
Collaborative Child Custody Resolution
Child Custody Litigation

Custody Reform: H.1306 & H.2684 - Is Changing the "Best Interest" Standard Necessary?

2011-08-25T10:00:00.002-04:00

There are four house bills that propose changes to the current custody statute. However, H.1306 and H.2684 are practically the same, though the language in each and the numbering of sections differs slightly. We will review H.1306 primarily in this post and will simply note how H.2684 is different. H.1306 was filed in the House on January 20, 2011 and referred to the Joint Committee on the Judiciary on January 24, 2011. H.2684 was originally referred to the Committee on Children, Families and Persons with Disabilities, but on April 13, 2011 was discharged and on May 5, 2011 was referred to the Joint Committee on the Judiciary where all of the similar bills are awaiting action as well.

H.1306 – Legislation relative to shared parenting in cases of divorce. (H.2684 – Legislation relative to supporting children and parental custody.)

Similar to the two previously reviewed Senate proposals, these proposed bills replace large sections of the current statute, replacing them with greater presumptions for shared custody. H.1306 is divided into 8 sections (H.2684 is 7 sections). These bills make no changes to the definitions of custody and make no additions to the definitions.

Section 1 of H.1306 then deletes the following language:

Section 31 of Chapter 208 of the General Laws, as appearing in the most recent edition, is hereby amended in the sixth paragraph by striking the following:.- When considering the happiness and welfare of the child, the court shall consider whether or not the child's present or past living conditions adversely affect his physical, mental, moral or emotional health.

Section 2 of H.1306 replaces this language with the following:

Said section 31 is hereby further amended by inserting after the sixth paragraph the following new paragraph:- In furtherance of the public policy that the happiness and welfare of children is enhanced by frequent and continuing contact with both their parents, upon the filing of an action in accordance with the provisions of this section, section twenty eight of this chapter, or section thirty-two of chapter two hundred and nine, the parents shall have temporary shared legal custody and shared physical custody of any minor child of the parties. In making an order or judgment relative to the custody of a minor child, there shall be a presumption that, absent emergency conditions, or abuse or neglect of said child, the parents shall have shared legal custody and shared physical custody of said child. The judge may enter any order or judgment for sole legal custody for one parent and/or sole physical custody for one parent if written findings are made setting forth the specific facts supporting a determination that the child would be harmed as a result of shared legal or shared physical custody. In making any order or judgment concerning the parenting schedule of each parent with a minor child, the rights of the parents, absent emergency, abuse, or neglect of one of the parents, shall be held to be equal, and the Court shall endeavor to maximize the exposure of the child to each of the parents so far as the same is practicable. A change in the availability of one or both parents to parent a minor child, and/or a change in the developmental stage of a minor child, shall be presumed to constitute a material and substantial change in circumstances for the purposes of a complaint or counterclaim seeking to modify a parenting schedule or parenting plan incorporated into a judgment of divorce. Nothing herein shall be deemed to modify the provisions of G.L. c.208, sec. 31A.

Section 3 of H.1306 then deletes paragraphs 7-10 of the original statute, so that they are essentially replaced by the above language.

The combination of these changes would have the following effects:

1. Directs the court that frequent contact is in the best interest of the children, regardless of whether the past or present living conditions are adversely affecting the children.

2. Creates a presumption for temporary shared physical custody as well as shared legal.

3. Requires that in order to grant sole legal or physical custody the Judge must enter findings that the child would be harmed by shared custody.

4. Creates rights of the parents which shall be considered equal (absent abuse or neglect), and requires the court to make an effort to maximize time with both parents. This implies equal time, but doesn't explicitly require it, giving the Judges some room for discretion.

5. Allows parenting plans to be modified as children get older (and enter new developmental stages) or if either parent has a change in availability (i.e. a change in work schedule or living situation).

6. Deletes the presumption against shared custody in restraining order cases.

Bill H.2684 makes essentially the same changes but consolidates Sections 2 and 3 into one section, so the numbering hereafter will be off by one section. The only notable differences are the addition of an indication that the presumption of shared legal and physical custody shall be rebuttable and that said presumption:

may be rebutted by either party by a preponderance of the evidence that the other parent has engaged in a pattern or serious incident of abuse or neglect of the minor child.

H.1306 was less specific as to the evidentiary standard but essentially allowed for the same exception.

Section 4 of H.1306:

Said section 31 is hereby further amended in the twelfth paragraph, in the third sentence, by inserting after the words "The court may also reject the plan and issue a sole legal and" the following:- /or sole

The intention here is to clearly give the Court the authority to award sole physical custody but shared legal custody (or vise versa). Although, a strict reading of the current statute might not allow this, it is common practice anyway. Section 3 of H.2684 is practically the same with no functional difference.

Section 5 of H.1306 adds language requiring the court to make written findings "setting forth the specific facts supporting a determination that the child would be harmed as a result of shared legal or shared physical custody" if the court rejects a shared parenting plan submitted by the parties. This is the same standard presumption created by this bill for temporary orders and is therefore consistent. Section 4 of H.2684 is practically the same with no functional difference.

Section 6 of H.1306 adds language to indicate that:

The failure of one or both parties, however, to submit a shared custody implementation plan for trial shall not diminish the presumption of joint physical and joint legal custody, nor affect the child's right and the parents' rights to frequent and continuing contact.

This will presumably protect parties who are unrepresented and don't know that they are required to file a parenting plan, by not punishing their rights for their failure. Practically speaking, though, they will not receive the same consideration as a parent who does submit a plan because the Judge will not have two proposals in front of them when making a decision. The thought here is nice, but in practice it would be a bad idea not to submit a proposal if you want your voice to be heard as well. Section 5 of H.2684 is practically the same with no functional difference.

Section 7 of H.1306 amends the child support section to say the opposite of what it currently states:

Said section 31 is hereby further amended by striking the fourteenth paragraph and inserting in place thereof the following:- If shared physical custody is ordered, the judge shall at that time make a child support order, or revise its previous order, as appropriate to the circumstances.

This is vague enough to allow the Child Support Guidelines to control, and frankly given the amount of time and work that goes into the crafting of the Guidelines, this makes sense. It also resolves the apparent conflict between the current Guidelines and the current statute. Section 6 of H.2684 is practically the same with no functional difference.

Finally, Section 8 of H.1306 amends the last paragraph to again change the standard from "best interest of the children" to require a finding that the child "would be harmed as a result." This is consistent with the other changes proposed by this bill. Section 7 of H.2684 is practically the same with no functional difference.

Conclusion

These proposed bills have advantages over the senate proposals we reviewed because they at least recognize that equal time may not trump the need to make changes to the parenting plan based on the developmental stages of the child. Recognizing that different developmental stages of the child are relevant is an important factor to include when creating a presumption of shared physical custody.

The standard for overriding shared custody plans in these proposals is "harm to the child" as opposed to "best interest of the child" which is clearly a more stringent standard. Although, H.2684 includes both in its language, the existence of the more stringent language will control anyway and so the practical affect is the same. In reality, we're not sure it would make all that much difference anyway because "harm to the child" is still a vague and broad standard. Judges could presumably make a finding that anything not in the best interest of the child could cause them harm. Therefore, we are not that concerned about this stronger language, given that it's impact is likely more instructive as to the importance of the shared custody presumption.

Overall these are better structured bills than the two senate proposals, but these bills still go too far in our opinion by deleting the Restraining Order presumption language. This language could be amended to make it less objectionable, but deleting it altogether is irresponsible. If this one change could be made, then this is the first proposal that balances a shared physical custody presumption with other relevant considerations. As the language currently stands, however, we can not endorse either of these bills.

To read more about Shared Parenting in Massachusetts, check out the following pages:

Parenting Plan Worksheet - Use this worksheet to help compare potential or proposed Parenting Plans on a user-friendly calendar.

Child Custody Mediation
Collaborative Child Custody Resolution
Child Custody Litigation

Custody Reform: S.847 – Shared Custody Above All Else?

2011-08-24T10:00:00.002-04:00

The second senate bill that proposes amendments to the current custody statute is S00847. This proposal was filed in the Senate on January 20, 2011 and referred to the Joint Committee on the Judiciary on January 24, 2011.

S.847 – Legislation to share custody of minor children of divorced or separated parents

This bill begins by deleting only paragraph 2-9 of the current statute and replacing just those parts:

Section 31 of chapter 208 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by striking out the second through the ninth paragraphs, and inserting in place thereof the following 3 paragraphs:

Before we look at what is being added, it's important to understand what this bill proposes to delete. Paragraphs 2-5 of the original statute define sole legal custody, shared legal custody, sole physical custody and shared physical custody.

Paragraphs 6-9 of the original statute create a presumption of temporary shared legal custody (with some exceptions for abuse or restraining order situations) and state that there shall be no presumption for permanent shared legal or physical custody and no presumption for temporary shared physical custody.

By deleting these paragraphs this proposed bill essentially deletes any distinction between legal or physical custody.

In place of these traditional distinctions the proposed bill inserts the following language:

To ensure minor children of frequent and continuing contact and a meaningful relationship with both parents after the parents have separated and divorced, it becomes necessary to encourage parents to share in the rights and responsibilities of child care and rearing. Primary considerations in awarding custody shall be given to both parents jointly in order to secure the best interest of the children by providing continuation of parent-child relationships. It is therefore the presumption of the courts that in most cases shared custody should be considered paramount to ensure the happiness and welfare of the children.

In all separation and divorce proceedings involving minor children, it shall be a presumption of the court that both parents have an inalienable right to share temporary and final legal, as well as physical, custody of the children unless one or both parents: (1) are proven to be unfit to such an extent and in such a manner as to cause immediate physical or emotional danger or damages to the children, (2) abandon the children, or (3) voluntary relinquish custody. An agreement signed by both parents defining the shared arrangements shall be the order of the courts, provided the parents have been apprised of their custody rights, or unless clear and convincing findings indicate that such an order would not be in the best interest of the children.

Only after the parents have attempted and failed to reach an agreement on the shared living arrangements of the children shall the court determine the shared arrangements. The children shall also have the right to reside and spend an equal amount of time with each parent, provided this sharing arrangement does not interfere nor disrupt the school term. If equal time is neither practical nor possible, the right of one parent to a minimum guaranteed amount of time per year with the children shall be established and protected by the courts.

The first paragraph indicates that shared custody (without reference to a legal/physical distinction) should be the default in most cases and states an ideology that shared custody is in in the best interest of the children.

The second paragraph indicates a presumption of both temporary and final, shared legal and physical custody of the children. This is a bit confusing since the definitions of legal and physical custody have been deleted. The only exceptions to these presumptions are enumerated specifically and include finding a parent unfit to the extent that they pose an immediate danger to the children, finding that a parent abandoned the children, or if a parent voluntarily relinquishes custody.

There is also a presumption that shared custody agreements will be enacted as court orders absent "clear and convincing evidence" indicating that the order is not in the best interest of the child. This is a much higher standard than the current statute, but practically speaking may not be much different than current practice. The Judges do not typically override parties' agreements for custody anyway.

The third paragraph creates a presumption of equal time for the children with each parent so long as such a schedule doesn't interfere with school. This takes the shared custody presumption one step further by specifying the importance of equal time. Even if equal time is not possible the proposed bill requires a minimum guaranteed amount of time with each parent.

Conclusion

There are numerous practical problems with this proposed bill. First, the deletion of the legal and physical custody definitions is inconsistent with still using those terms later in the statute. Second, the substitution of an absolute presumption for shared custody and equal time ignores certain instances where this may not be appropriate. As discussed in previous posts, equal time is not appropriate for very young children.

Furthermore, equal time is not appropriate in cases of abuse. The deletion of language relating to restraining orders and past abuse and the substitution of the suggested language would require a much higher standard be met to restrict parenting time. We have previously expressed concern about this type of language erring on the side of parent's rights above erring on the side of protecting children. The primary concern should be children's safety and development first, even before the rights of parents.

Based solely on the practical inconsistencies of this bill we could not endorse it. In addition, as we have indicated above, the presumption of shared physical custody and equal time above all other considerations goes much too far. S00659 went a little too far in our opinion but would be much preferable to this proposed bill.

To read more about Shared Parenting in Massachusetts, check out the following pages:

Parenting Plan Worksheet - Use this worksheet to help compare potential or proposed Parenting Plans on a user-friendly calendar.

Child Custody Mediation
Collaborative Child Custody Resolution
Child Custody Litigation

Custody Reform: S.659 – Change that Goes too Far?

2011-08-23T10:00:00.001-04:00

Having provided an in-depth review of the current custody statute in Massachusetts, we will now move on to our review of the six proposed bills that would significantly modify that statute.

The first bill we will review was filed in the Senate on January 19, 2011 and referred to the Joint Committee on the Judiciary on January 24, 2011. This bill makes some changes which could be positive, but also suggests one change that in our opinion goes too far.

S.659 – Legislation to strengthen family relationships through responsible shared parenting

This bill begins by deleting the current statute and replacing it entirely:

Chapter 208 of the General Laws, as appearing in the 2004 Official Edition, is hereby amended by striking out section 31 and inserting in place thereof the following section: -

However, much of the original language remains in this version, including the definitions of sole legal custody, shared legal custody and sole physical custody. The first difference is in the definition of shared physical custody, adding the italicized language:

"Shared physical custody", a child shall reside equally with and be under the supervision of each parent for specified periods of time; provided, however, that physical custody shall be shared by the parents in such a way as to assure a child frequent and continued contact with both parents. The child is not required to reside with each parent for an equal amount of time during any given period.

These additions indicate a preference for equal time but also clarify the common-sense approach of sharing parenting time equally does not require counting every minute of every hour to ensure that the time is exactly equal.

Another change to the definitions in this proposed bill is the addition of a definition for the term "parenting plan":

"Parenting plan", an implementation plan using the standardized parenting plan format, as approved by the chief justice of the probate and family courts, which shall include, setting forth the details of shared physical custody including, but not limited to, the child's education; the child's health care; procedures for resolving disputes between the parties with respect to child-raising and duties; and the periods of time during which each party will have the child reside with each parent, including holidays and vacations, or the procedure by which such periods of time shall be determined.

This addition requires the Courts to create a standardized parenting plan format. This format could presumably be reduced to a form with certain required details for each case, which would result in more consistent parenting plans. Having standardization would protect pro se parents (those without attorneys) by helping them understand what issues their agreements should address. However, this approach would also reduce the flexibility which parents have in crafting their own parenting plans currently. How the Chief Justice implements this section could make a big difference on how flexible parenting plans could be in the future.

The next section of the current statute is largely superfluous because it doesn't add anything to later sections. However, this proposed bill would change this paragraph significantly by adding the following italicized language:

There shall be a rebuttable presumption that shared legal and shared physical custody is in the child's best interest. In making an order of judgment relative to the custody of children, the rights of the parents shall, in the absence of misconduct, be held to be equal, and the happiness and welfare of the children shall determine custody. When considering the happiness and welfare of the child, the court shall consider whether or not the child?s present or past living conditions adversely affect the physical, mental, moral or emotional health of the child, and the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent. The court shall further consider the capacity and disposition of each parent to comply with the terms of the parenting plan.

The current statute contains only one presumption, temporary shared legal custody. This means that there is currently no presumption for temporary or permanent shared physical custody or even for shared legal custody at a trial. The addition of the first sentence above, would change that completely, by creating a presumption for both throughout the case.

The addition of the "willingness" clause specifically addresses the fact that shared custody is often denied because one parent refuses to cooperate with the other. However, pointing it out specifically as a factor does not solve the problem that these cases are hard, not because of a vague standard, but because of the difficulty in obtaining evidence of alienation. It is very tricky to prove, especially with the evidentiary limitations on hearsay, that a person is not being cooperative or trying to alienate the child. This section clarifies that a Judge should consider this evidence, but doesn't solve the problem of how difficult it is to get that evidence in the first place. Even with this change, these types of cases will remain very complicated, and probably still require the involvement of a Guardian at litem.

As further enforcement of these new presumptions, the proposed bill adds a presumption of temporary shared physical custody to the presumption of temporary shared legal custody. This means that at a temporary order hearing, a Judge will have to order shared physical custody unless he or she makes a finding that shared custody would not be in the best interest of the child. This proposed bill also deletes the language that specifically allowed the Judge to consider "whether the parties have a history of being able and willing to cooperate in matters concerning the child." Of course, deleting the language carries some weight, but since this proposal doesn't preclude the Judge from considering this information it could still be considered under the "best interest of the child" standard.

The next section in the current statute was a further exception to the shared legal custody presumption in cases involving a restraining order. If a restraining order issued, under the current law, then the court must provide findings to allow shared custody. In other words, the Judge must have a good reason for allowing shared custody if their is a restraining order. This is essentially a presumption that the standard which must be met to obtain a restraining order (history of physical or sexual abuse or a reasonable fear or imminent serious physical harm), is sufficient to suggest that shared custody would not be appropriate.

This proposed bill turns that presumption around:

If the court finds evidence of abuse, neglect or domestic violence as defined by section 31A of chapter 208, section 38 of chapter 209, section 3 of chapter 209A, or section 10 of chapter 209C and issues a temporary or permanent custody order which does not grant shared physical custody, the court shall within 90 days enter written findings of fact as to the effects of the abuse on the child, which findings demonstrate that such order is in the furtherance of the child?s best interests and provides for the safety and well-being of the child.

This language requires that a Judge not make any changes to the shared custody presumption due to a restraining order, unless the Judge finds that the abuse affects the child, and the limitations are in the best interest of the child. The requirement of specific findings relating to the child is presumably based on the idea that even if abuse exists between the two parents that doesn't necessarily mean the accused abuser would also endanger the child. If you consider cases of true physical domestic violence, this presumption seems ludicrous. If a parent is willing to hit the other parent, why would't we assume they may also hit their child. The proponents of this change would likely respond that cases of actual violence would clearly allow the Judge to make the findings required under this language. So the change is really meant to deal with the cases where the accusations are vague or heavily disputed. But is this enough to shift the presumption?

Shifting this presumption is an idealogical choice based on an assumption that the majority of restraining orders involve either minor issues blown out of proportion, claims of fears that aren't based in reality, or accusations that are completely fabricated. While it is true that these cases do exist, changing the presumption to require Judges to make findings that the alleged abuse does not affect the child, essentially requires them to rehear the entire restraining order case in order to decide the issue of shared physical custody. If the majority of restraining order issues didn't affect children, that would make sense, but this is an assumption that would require some evidence before we could back it. The presumption of shared custody should not outweigh some requirement to err on the side of protecting children first. In cases where a restraining order has been extended there is at least one Judge who found good reason for it. This should be enough to create a presumption against the accused abuser, if only to err on the side of protecting the child. It may be unfair in some cases, but much less unfair than requiring a victim of abuse to prove the abuse twice in order to protect the children.

The next change is less controversial, but still significant. The language in the current statute relating to when parties must propose parenting plans to the court is shortened because much of that detail is now included in the added "Parenting Plan" definition. There is also an addition here, though, of the words: "custody hearing"

The parties, jointly or individually, shall submit to the court at the custody hearing or trial a parenting plan. The court shall accept a completed parenting plan submitted and agreed upon by both parties, in the event that a parenting cannot be agreed upon by the parties, the court may issue a parenting plan modifying a plan submitted by the parties. A parenting plan issued or accepted by the court shall become part of the judgment in the action together with any other appropriate custody orders and orders regarding the responsibility of the parties for the support of the child.

This change would mean that parents would have to submit parenting plans at any custody hearing (including temporary orders). This is good practice anyway. In any hearing where issues are disputed we try to submit a proposed order for those issues. Requiring it puts everyone on notice that they should be prepared to do so and is therefore a change we are in favor of.

The final change is substituting the word "will" for the word "may" in the following paragraph:

Where the parents have reached an agreement providing for the custody of the children, the court may will enter an order in accordance with such agreement, unless specific findings are made by the court indicating that such an order would not be in the best interests of the children.

This doesn't change the Judges' discretion to make changes to the plan if they make findings that the best interest of the children requires something different, but absent said findings it requires implementation of the parents' plan. In practice this is what happens anyway. Judges seldom vary from an agreement, and when they do they provide reasons for the variation.

Conclusion:

Most of the changes suggested by this bill, in our opinion, are a step in the right direction. They may not be practical, such as the requirement of the Chief Justice to create standardized parenting plans, but all of these changes seek equality of parenting time as a default. Given the greater involvement of both parents in the modern world, and the greater likelihood that both parents work outside the home, these defaults make more sense today, with one exception: very young children.

Custody Reform should be based on evidence about what defaults are in the best interest of children. There is evidence of a shift in our society to greater parenting involvement of fathers, but the available evidence is still strongly in favor of very young children spending more time with their mother. Frequent contact with both parents is necessary at a very young age, but equal time doesn't take into account the realities of the unusual feeding and sleeping schedule that newborns have (especially if the mother is breast-feeding).

We are in favor of recognizing the societal shift in parenting duties through greater presumptions for shared physical custody. However, there should also be some indication that this presumption does not mean equal time for children whose age would not favor equal time. We would suggest some tempering of the shared physical custody presumption to recognize the different needs of children at different ages.

In addition, the proposed bill makes one change that goes too far, requiring extra findings in abuse cases. Again we would urge that Custody Reform be based on evidence about what defaults are in the best interest of children. There would have to be strong evidence that the majority of children were not harmed by the accused abusers in restraining order cases for us to favor this type of change. The current presumption errs on the side of protecting children, and that seems more appropriate absent strong evidence that such a presumption is not necessary.

Because of this one major difference of opinion with the drafters of S00659 this is not a bill we would support in its current format.

To read more about Shared Parenting in Massachusetts, check out the following pages:

Parenting Plan Worksheet - Use this worksheet to help compare potential or proposed Parenting Plans on a user-friendly calendar.

Child Custody Mediation
Collaborative Child Custody Resolution
Child Custody Litigation

Custody Reform: The Current State of Massachusetts Child Custody Law

2011-08-22T10:00:00.001-04:00

Image courtesy of FreeFoto.com

This is the first post in our series evaluating the potential of Custody Reform in Massachusetts. Before you can figure out where you are going, you must first understand where you are. Therefore, in order to give context to the custody reform proposals, we will first review the current law.

The current statute governing the custody of children in a divorce in Massachusetts is M.G.L. 208 s 31. The statute defines physical custody vs. legal custody, and shared vs. sole custody. The statute also creates presumptions which have been criticized for favoring sole physical custody and in practice favoring mothers over fathers. To understand how these criticisms arise, we will examine the language of the statute in depth:

The statute first defines certain terms:

“Sole legal custody”, one parent shall have the right and responsibility to make major decisions regarding the child’s welfare including matters of education, medical care and emotional, moral and religious development.

“Shared legal custody”, continued mutual responsibility and involvement by both parents in major decisions regarding the child’s welfare including matters of education, medical care and emotional, moral and religious development.

“Sole physical custody”, a child shall reside with and be under the supervision of one parent, subject to reasonable visitation by the other parent, unless the court determines that such visitation would not be in the best interest of the child.

“Shared physical custody”, a child shall have periods of residing with and being under the supervision of each parent; provided, however, that physical custody shall be shared by the parents in such a way as to assure a child frequent and continued contact with both parents.

These definitions separate the elements of parenting into two separate categories of custody, both of which the court must determine. The intention of this division is to recognize that there is a difference between overseeing the child's everyday decisions and their long-term development. We often describe this to clients as the difference between deciding where a child will go to school (legal custody) versus what that same child will wear to school or what they will take for lunch on any given day (physical custody).

Next the statute pays lip-service towards parents having equal rights:

In making an order or judgment relative to the custody of children, the rights of the parents shall, in the absence of misconduct, be held to be equal, and the happiness and welfare of the children shall determine their custody. When considering the happiness and welfare of the child, the court shall consider whether or not the child’s present or past living conditions adversely affect his physical, mental, moral or emotional health.

Although this paragraph clearly indicates the court can treat parents unequally if there has been misconduct, or if the current living conditions are endangering the child, it is for the most part a superfluous paragraph because it doesn't give any direction as to how the court should decide legal or physical custody. Every word in a statute is important, but when the statute fails to indicate action that should be taken based on a certain section, than that section lacks teeth. It is our opinion, that one area the statue could be improved is by clarifying how parents are to be treated equally.

Temporary Legal Custody

The next paragraph gives direction to how the court should decide legal custody on temporary orders (i.e. while the divorce case is pending):

Upon the filing of an action in accordance with the provisions of this section, section twenty-eight of this chapter, or section thirty-two of chapter two hundred and nine and until a judgment on the merits is rendered, absent emergency conditions, abuse or neglect, the parents shall have temporary shared legal custody of any minor child of the marriage; provided, however, that the judge may enter an order for temporary sole legal custody for one parent if written findings are made that such shared custody would not be in the best interest of the child. Nothing herein shall be construed to create any presumption of temporary shared physical custody.

This means that temporary shared legal custody is the default position, and a Judge has to make written findings if they don't order shared legal custody (and the statute also clearly indicates that the same presumption does not apply for physical custody). If the Judge doesn't award temporary shared legal custody, then the Judge is required to indicate some reason that the Judge believes shared legal custody is not in the best interest of the child.

The next paragraph provides some guidance on what might convince a Judge that temporary shared legal custody is not in the best interest of the child:

In determining whether temporary shared legal custody would not be in the best interest of the child, the court shall consider all relevant facts including, but not limited to, whether any member of the family abuses alcohol or other drugs or has deserted the child and whether the parties have a history of being able and willing to cooperate in matters concerning the child.

Although not included specifically, here, Judges will often consider the ability of parents to cooperate and communicate as a "relevant factor." This can be very frustrating for parents because it means that if one parent makes communication impossible by being difficult, they could be "rewarded" with sole legal custody.

Although this type of situation is unusual, the discretion allowed by this paragraph allows this to happen in some cases, and is one of the biggest complaints that alienated parents have about the current statute.

The direction on temporary legal custody ends with a presumption against shared legal custody in cases of abuse:

If, despite the prior or current issuance of a restraining order against one parent pursuant to chapter two hundred and nine A, the court orders shared legal or physical custody either as a temporary order or at a trial on the merits, the court shall provide written findings to support such shared custody order.

Legal and Physical Custody at Trial

Despite creating a presumption for shared legal custody on a temporary basis, the current law indicates that there should be no presumption for shared legal or physical custody at trial:

There shall be no presumption either in favor of or against shared legal or physical custody at the time of the trial on the merits, except as provided for in section 31A.

It is confusing that there would be a presumption for shared legal custody on a temporary basis but not a permanent basis. The likely reasoning behind this difference is that during a full trial on the merits the court should have sufficient evidence to make a choice without having to rely on the limited representations received at a temporary order hearing. Essentially, the legislators put their faith in the Judges to use their discretion appropriately at a full trial on the merits, but recognized the limits of temporary order hearings and therefore indicated a presumption for that stage. Practically speaking, a presumption of temporary shared legal custody is likely to continue to permanence anyway, but there is clearly the opportunity to re-argue this issue at trial.

In addition, although this section indicates there should be no presumption against shared legal or physical custody at trial, the next paragraph places extra requirements on a parent seeking shared legal or physical custody:

At the trial on the merits, if the issue of custody is contested and either party seeks shared legal or physical custody, the parties, jointly or individually, shall submit to the court at the trial a shared custody implementation plan setting forth the details of shared custody including, but not limited to, the child’s education; the child’s health care; procedures for resolving disputes between the parties with respect to child-raising decisions and duties; and the periods of time during which each party will have the child reside or visit with him, including holidays and vacations, or the procedure by which such periods of time shall be determined.

Practically speaking, in any custody dispute both parties are going to submit proposed parenting plans at trial, but it is odd that the statue only requires it when a parent is seeking shared custody.

At the trial on the merits, the court shall consider the shared custody implementation plans submitted by the parties. The court may issue a shared legal and physical custody order and, in conjunction therewith, may accept the shared custody implementation plan submitted by either party or by the parties jointly or may issue a plan modifying the plan or plans submitted by the parties. The court may also reject the plan and issue a sole legal and physical custody award to either parent. A shared custody implementation plan issued or accepted by the court shall become part of the judgment in the action, together with any other appropriate custody orders and orders regarding the responsibility of the parties for the support of the child.

This paragraph requires the Judge to consider the proposals of both parents for shared custody, but gives the Judge discretion to reject or amend the plans. The discretion of the Judge is not limited at all except by the "best interest of the child" standard. Many parties feel that this gives the Judges too much unguided discretion and most of the proposed bills amend this section.

The next section indicates that shared custody agreements between parties shall be treated as a plan under the previous section submitted jointly by the parties:

Provisions regarding shared custody contained in an agreement executed by the parties and submitted to the court for its approval that addresses the details of shared custody shall be deemed to constitute a shared custody implementation plan for purposes of this section.
Essentially this means that the Judge could amend or reject a jointly crafted parenting plan within their own discretion. However, this very rarely happens and the last paragraph of the statute requires that a Judge at least indicate why they think the plan is not in the best interest of the child if they overrule an agreement of the parties:

Where the parents have reached an agreement providing for the custody of the children, the court may enter an order in accordance with such agreement, unless specific findings are made by the court indicating that such an order would not be in the best interests of the children.

Child Support

The statute also deals briefly with how shared custody may affect child support:

An award of shared legal or physical custody shall not affect a parent’s responsibility for child support. An order of shared custody shall not constitute grounds for modifying a support order absent demonstrated economic impact that is an otherwise sufficient basis warranting modification.

Clearly, the current statute attempts to separate issues of child support from custody determinations. This makes sense for shared legal custody, but generally shared physical custody represents a sharing of parenting time that would result in sharing of child-related costs. The Massachusetts Child Support Guidelines appear to be at odds with this statutory language:

These guidelines are based upon the child(ren) having a primary residence with one parent and spending approximately one third of the time with the other parent.

Where two parents share equally, or approximately equally, the financial responsibility and parenting time for the child(ren), the child support shall be determined by calculating the child support guidelines twice, first with one parent as the Recipient, and second with the other parent as the Recipient. The difference in the calculations shall be paid to the parent with the lower weekly support amount.

You can distinguish the difference in language because the Guidelines make no mention of "shared physical custody", but that is just a semantic argument. The reality is that shared physical custody should reflect that the parents "share equally, or approximately equally, the financial responsibility and parenting time for the children." Thus, it would appear that for the Guidelines to be consistent with the statue, this section of the statute should be updated.

Finally, the statute tries to protect some rights of the non-custodial parent (absent or abuse or other specific limitations) to have access to academic and medical information about their child:

The entry of an order or judgment relative to the custody of minor children shall not negate or impede the ability of the non-custodial parent to have access to the academic, medical, hospital or other health records of the child, as he would have had if the custody order or judgment had not been entered; provided, however, that if a court has issued an order to vacate against the non-custodial parent or an order prohibiting the non-custodial parent from imposing any restraint upon the personal liberty of the other parent or if nondisclosure of the present or prior address of the child or a party is necessary to ensure the health, safety or welfare of such child or party, the court may order that any part of such record pertaining to such address shall not be disclosed to such non-custodial parent.

Unfortunately, despite this paragraph, schools and doctors will often refuse to provide information to a non-custodial parent if they can't show that they at least share legal custody. As a practical matter, when we have a case with sole legal custody (and even sometimes in shared custody cases) we request language in any Agreement or Judgment that clearly indicates that the non-custodial parent has these rights. This ensures that schools and doctors don't refuse to provide such information.

Conclusion:

The advantages of the current statute are that it has been around long enough for the courts to well understand the presumptions and for the case law to be well developed. However, society has changed and it may be time to update the statute to reflect that two working parents is now the default in many households. In addition, there are other issues discussed above such as the inconsistency of the child support language with the current Guidelines. Overall, some updates are needed.

After we review the proposed bills in the coming weeks, we will summarize them and provide our own thoughts on the best way to update the current statute.

To read more about Shared Parenting in Massachusetts, check out the following pages:

Parenting Plan Worksheet - Use this worksheet to help compare potential or proposed Parenting Plans on a user-friendly calendar.

Child Custody Mediation
Collaborative Child Custody Resolution
Child Custody Litigation

Custody Reform: What is it?

2011-08-19T10:00:00.004-04:00

If you live in Massachusetts, by now you've probably heard about Alimony Reform. Both the House and Senate have passed the Alimony Reform Act of 2011 and it now awaits the approval of the House again (for some language changes made by the Senate). Although, the majority of people in Massachusetts are just now learning about this reform, it has actually been in the works for at least 10 years. In various forms there have been numerous attempts to update the alimony laws in Massachusetts, culminating with a recent Legislative Task Force which authored and approved the current bill.

The same type of reform may be on the horizon for the Massachusetts custody statute.

The Joint Committee on the Judiciary held a public hearing on May 18, 2011 where public testimony was given primarily on Alimony Reform and a pending human trafficking bill. But there were also a few people (mostly fathers) who were there to present testimony in support of a few different bills that would make changes to how custody is determined in the Massachusetts Probate and Family Courts. After further review there are currently six pending bills which would make significant changes in this area, and six more that would make minor tweaks or additions to the current custody statute.

We have provided links to the current custody statute and each of the proposed bills, below. Over the next two weeks we will be posting a series of blogs evaluating the pros and cons of each of these proposals and comparing them to the current statute. We believe that, similar to alimony reform, there are flaws in the current law that could be improved with some updating. However, we also recognize that some of these proposals go too far.

We will provide insight to how these proposals might work in certain instances and fail in others and we hope that our analysis over the course of these posts will provide a benefit from our experience as family law practitioners.

Current Statute: M.G.L. 208 s 31 - Custody of children; shared custody plans

S.659 – Legislation to strengthen family relationships through responsible shared parenting;

S.847 – Legislation to share custody of minor children of divorced or separated parents;

H.1306 – Legislation relative to shared parenting in cases of divorce;

H.1330 – Legislation relative to the determination of the legal custody of children in court cases;

H.2244 – Legislation relative to the rights of parents in child custody proceedings;

H.2684 – Legislation relative to supporting children and parental custody;

H.2851 – Legislation relative to mediation of divorce cases involving children;

H.1305 – Legislation relative to child care involvement of non-custodial parents;

S.691– Legislation relative to parental choice of terminology in certain domestic relations matters;

H.2258– Legislation relative to parental choice in child custody agreements;

H.3289 – Legislation relative to the modification of custody orders involving parents called to active military service;

H.3289 – Legislation to prohibit certain activities within the home until a divorce is final and financial and custody issues are resolved.

To read more about Shared Parenting in Massachusetts, check out the following pages:

Parenting Plan Worksheet - Use this worksheet to help compare potential or proposed Parenting Plans on a user-friendly calendar.

Child Custody Mediation
Collaborative Child Custody Resolution
Child Custody Litigation

Latest Update on Massachusetts Alimony Reform Act of 2011

2011-08-15T15:12:00.003-04:00

Both the House of Representatives and the Senate in the Massachusetts State House have unanimously passed the Alimony Reform Act of 2011, however, the Senate changed a few words. Proponents of the bill are hoping that it avoids going back to committee, and as of now it is unclear as to whether a full House vote will be required. The bill is still expected to pass, but this is a bump in what has for some been a very long road towards reform.

Why I Hope You Never Call When I Give You My Business Card, But If You Do, I'm Here to Help

2011-08-11T23:17:00.005-04:00

At Kelsey & Trask, we deal with helping individuals through difficult transitions, whether it be through bankruptcy or debt relief services, or through a divorce or paternity case. Most people hire us for reasons that they wished did not exist. Our business is helping people through situations that they have always wanted to avoid.

When I hand out my business card, I usually tell the recipient that I hope that they never have to call. It is not that I don't want to help people through difficult transitions, it is because I hope that these difficult transitions are not necessary. If, God forbid, you are faced with such a transition, let us help guide you to the next chapter of your life.

Divorce Court is Not Like the Television Show "Divorce Court"

2011-08-11T22:40:00.005-04:00

At Kelsey & Trask, we like to tell our clients that we assist them in the process of transitioning from one chapter in their lives to the next. In the context of divorce, this transition for many is emotionally difficult. At times, there is often the urge to lash out at one's soon-to-be former spouse, and many people are drawn to the concept of "winning," or righting a wrong.

There are very few pure victories in Probate & Family Court. The nature of the legal process of getting divorced is incomparable to a criminal trial, where a defendant is found guilty or not guilty, or a civil trial, where a defendant is found liable or not liable. I have often explained to clients that "divorce court is not like the television show by the same name." Just because there is a judge does not mean that your worth as a husband or wife will be judged; no "winner" will be announced.

The evolution of no-fault divorce was meant in part to prevent having a courtroom regularly host the high-emotion conflict that one might see on "The Jerry Springer Show" or "Maury." Divorce court is disappointingly unsupportive for those looking to air their grievances against their former mate.

There are certainly instances where cases are litigated in a way that exposing the skeletons in a soon-to-be former spouse's closet is necessary. However, it is important to realize that the system of divorce court is ill-suited for emotional healing. It is designed to divvy up what the couple has and set up a plan for the children, if any, without diving into the psychology of the individuals involved unless the situation requires it.

As stated in a recent post , we wrote about how some emotional issues that arise during the divorce process are better suited for a specialist than an attorney, and we often refer our clients to someone with more training in the appropriate field.

It is important to realize that divorce court's shortcoming as a psychological healing forum means that often finalizing a divorce does not mean the end of the emotional aspect of breaking up. More times than not there is at least some residual bitterness and negativity, and dealing with these emotions at some juncture is necessary. While we at Kelsey & Trask will do everything that we can to assist in handling the legal transition, we are glad to be able to point you in the right direction if additional support would be helpful.

Is it Moral? Is it Legal? These are not the same Question.

2011-08-11T12:30:00.002-04:00

Dammit Jim, I'm a Lawyer not a Priest!

I often have to refer my clients to other professionals when issues arise in a divorce case that I do not have professional training to deal with. The most common example is when I tell clients that they need to seek the assistance of a therapist, because they are using me to help deal with emotional problems. But there is also the rare occasion when a client will ask me whether they should do something which I find morally offensive but which is technically not illegal. In these situations I will explain to a client that their actions may not have legal consequences but they may have other (moral) consequences. In other words, just because something is legal doesn't mean you'll be able to sleep at night.

A good example of this distinction is the latest case of divorced parents acting inappropriately:

Mr. Morelli published a Blog entitled "The Psycho Ex-Wife" where he and his current significant other bash his ex-wife and even, in some instances, his own children. The Court ordered him to take the site down, and this has sparked significant controversy over his potential First Amendment rights.

There are really two issues at play in this case, and many commentators seem to be confusing the two. The first issue is whether or not Mr. Morelli should be legally allowed to publish this material. Or put another way, is his speech protected by the First Amendment? The second, and just as important, issue is whether or not Mr. Morelli's actions are moral.

Because this is a Blog devoted to legal issues in family law, I will address the legal question first:

1. Is the Psycho Ex-Wife Blog protected by the First Amendment?

I have seen many Judges order parents not to disparage the other parent in front of, or within earshot of the children. In addition, we often include this provision in our parenting plan agreements. Obviously parents can agree to limit their rights, but is it a violation of the First Amendment to prohibit parents from speaking their mind to their children?

The First Amendment states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peacefully to assemble, and to petition the Government for a redress of grievances.

The Courts have expanded this limitation on Congress to include any "state action" by officials of any level of government, which would include state Judges. But that doesn't mean that freedom of speech is absolute. There are limitations which the U.S. Supreme Court has found are permissible.

The most common example is that you are not free to yell "fire" in a crowded theater if there is no fire. The incitement to riot or violence is considered unprotected for obvious reasons.

But there are other limitations that should be common-sense as well. You do not have the right to slander others, and in fact you may be subject to civil litigation if you do. You also don't have the right to publish obscenities. While these limitations are often difficult to pinpoint and usually involve some gray area, the overriding theme is that the government is not allowed to limit your speech because it is unpopular or distasteful, but can limit speech to protect the public.

In the Psycho-Ex Wife Blog case, the state Judge is trying to protect the children, and most state laws give Judges broad discretion to protect the best interest of children in custody disputes. In most cases, the Judge is not ordering that a parent cannot complain about their ex, but only that they can't do it in front of their children, who could obviously be damaged by such comments. It seems that this type of limitation is within the scope of restrictions which have previously been allowed.

Fortunately (or unfortunately, depending on your perspective), we are unlikely to see such a clear-cut case address this issue in front of the Supreme Court, because what parent wants to be the one to take an appeal to the Supreme Court claiming they should be able to tell their children directly that their Mom is a psycho.

In this case, Mr. Morelli has not taken it that far. Instead he has attempted to blur the line by claiming that his Blog was sufficiently anonymous and that the children would not have known about it if not for their Mother showing them the website. If the Mother showed the children the site then certainly her actions are as deplorable as his, but the legal question is: would they have found it anyway? The distinction he is attempting to make is that telling your children directly that their Mom is a psycho is different than writing it on the internet. But is it really that different?

Given how often we write on this blog about being careful with anything you put on the internet, you can probably guess where we come down on this issue. You should assume that everything you put on the internet is public and will be seen by anyone who can access the internet, especially the people you least want to see it. The idea that Mr. Morelli can protect his children from something he writes on the internet forever is laughable, and clearly that is where his argument breaks down. I can't recognize the practical distinction between saying something directly to your children and writing something on the internet in a forum where it can be copied, reposted, discussed on other blogs, and even end up on the Today Show.

The simple fact that this story has now made national news proves my point that once you put something on the internet you risk it having a life of its own and growing to a point where you do not control who sees it. This is especially true for your own children who have all the motivation in the world to read everything you tell them not to.

If there is no practical distinction between calling your ex a psycho on the internet, and saying it in front of your children, then the only way that you can support Mr. Morelli's First Amendment argument is to agree that he should have a constitutionally protected right to say these things directly to his children. Given the amount of psychological damage that can cause children of divorce, I don't think the First Amendment stretches that far.

2. But even if the First Amendment does protect his speech, Is it Right?

On principle, we don't endorse asking your lawyer for moral advice. But if you've read this far, you probably already know what our answer to this question is. Mr. Morelli doesn't seem to understand that his actions increase the conflict, not minimize them. He claims he chose this outlet as a way to help others, but there is a distinction between wanting to tell the world how bad your ex is and trying to find solutions about how to deal with those problems. This is a distinction lost on many, especially those who are particularly angry about how their divorce went. Complaining can be cathartic, but it doesn't solve problems and if you complain in a forum accessible to your ex, then you are more likely increasing the conflict, not trying to deflate it.

Many people will try to turn this case into a forum to talk about how hard it is to be a divorced mother vs. a divorced father (just read the comments on Huffington Post to see how far this has gone). This is exactly what Mr. Morelli was trying to do. Like many on the internet he was seeking validation through shared experience, and that validation was more important to him than his children's well-being. If he truly believes that his children would never see the words he wrote on the obviously public form of the internet than he is delusional.

Unfortunately, it is much more likely that he is looking for the same validation from his children that he is from the public. It is far more likely that when he wrote this blog he was actually hoping his children would see it some day.

This desire to be the "validated" parent is a common feeling. Parents often want their children to be on "their side" and understand that the other parent is at fault. The reason that the court has to tell parents that they shouldn't bad-mouth their ex-spouse in front of their children, is exactly because this feeling is common-place. Sometimes common-sense and moral judgment must be used to overcome strong emotional responses. Sometimes being a good parent is about biting your tongue. Mr. Morelli and his "psycho ex-wife" would be better off if they learned that lesson, or at least their children would be.

Alimony Reform and Child Support: What will Change?

2011-08-03T13:30:00.004-04:00

UPDATE: The Massachusetts Alimony Reform Act of 2011 was signed by the Governor on September 26, 2011. The new law, which becomes effective March 1, 2012, makes significant changes to alimony in Massachusetts. Read more about these changes here.

The Massachusetts Alimony Reform Act of 2011 has been passed by both the House and the Senate and now awaits the Governor's signature. Once it is passed, which is almost assured at this point, there will be many questions about how it is implemented. The one I am receiving most often already is:

How will alimony be calculated in cases with child support?

The section of the Alimony Reform Act that addresses this question is Section 6(c):

"For purposes of setting an alimony order, the court shall exclude from its income calculation:

(1) Capital gain income and dividend and interest income which derives from assets equitably divided between the parties under Section 34; and

(2) Gross income which the court has already considered for setting a child support order whether pursuant to the Massachusetts Child Support Guidelines or otherwise; provided that nothing in this section shall limit the court’s discretion to cast a presumptive child support order under the Child Support Guidelines in terms of unallocated or undifferentiated alimony and child support."

As indicated, the Alimony Reform Act would exclude from any General Term Alimony calculation gross income which was already used to calculate child support. Since the Massachusetts Child Support Guidelines presumptively apply up to a total gross income of $250,000, many practitioners read this section to mean that any cases where the total gross income does not exceed $250,000 will not have alimony if they have child support. This is the most obvious reading of the section, and was the intention as described by one of the drafters on the Joint Task Force at a recent conference I attended (I won't call her out by name but she is a lawyer who clearly understood the implications).

There has been some outrage over this interpretation because it is one of the most significant changes this law makes to presumptive alimony in child support cases. However, there are exceptions, which I will detail below.

Before I tell you the exceptions, though, let's examine if this is truly unfair (or at least inconsistent with the rest of the Act):

Sample Case:

The Act contains a formula for calculating the maximum alimony award as follows: "the amount of alimony should generally not exceed the recipient’s need or 30 percent to 35 percent of the difference between the parties gross incomes established at the time of the order being issued."

This means that if the higher-earning spouse (let's use the name Chris) earns $125,000 and the lower-earning spouse (Pat) earns $25,000 in gross income, then alimony should not exceed $30,000 to $35,000 per year. This assumes no child support, that Pat has a need for support, and that the marriage is of sufficient length to warrant support. If we use the average of $32,500 then Chris' after payment income is $92,500 and Pat's is $57,500, and all of Pat's $57,500 will be taxable income. Assuming an effective tax rate of 15%, Pat ends up with $48,875 in net income.

Now let's add children. Chris still earns $125,000 and Pat earns $25,000. Chris is the non-custodial parent and Pat is the custodial parent. Child Support by the guidelines (assuming no other expenses for simplicity) is $510 per week, $26,520 per year. Since all of Chris' income was taken into account for child support guidelines, the Alimony Reform Act would indicate that none is left to consider for alimony. Chris' after payment income is $98,480 and Pat's is $51,520, but only $25,000 of this is taxable income to Pat. Again assuming an effective tax rate of 15%, Pat ends up with $47,770 in net income. In addition, Chris is still paying tax on $125,000 in income.

As you can see, although Pat is receiving almost $6,000 less in support, when you take into account the taxation of alimony vs. the tax-free nature of child support, the effective support that Pat is receiving from child support is only about $1,000 less. And this difference is not necessarily going to Chris, rather it is being taxed by Uncle Sam.

Given the tax-free nature of child support to the recipient, in cases where all of the income is considered in calculating child support, the Alimony Reform Act's exclusion of that income from calculating alimony is consistent with the caps that they have proposed on total support. Of course, these numbers won't work out the same at all income levels. The differences will be greater as the gap in incomes becomes greater. And while it may seem foolish to pay that extra money to the tax-man, the drafters did provide for an alternative by allowing the Judges to have discretion on assigning some of child support as unallocated support.

Exceptions:

Furthermore, there are exceptions which can also help crafty attorneys get around this child support limitation in the Alimony Reform Act. In setting any alimony order the Judges are not completely limited by this formula and can vary depending on numerous circumstances:

"Grounds for deviation may include:

(1) Advanced age; chronic illness; or unusual health circumstances of either party;

(2) Tax considerations applicable to the parties;

(3) Whether the payor spouse is providing health insurance and the cost of heath insurance for the recipient spouse;

(4) Whether the payor spouse has been ordered to secure life insurance for the benefit of the recipient spouse and the cost of such insurance;

(5) Sources and amounts of unearned income, including capital gains, interest and dividends, annuity and investment income from assets that were not allocated in the parties divorce;

(6) Significant premarital cohabitation that included economic partnership and/or marital separation of significant duration, each of which the court may consider in determining the length of the marriage;

(7) A party’s inability to provide for his or her own support by reason of physical or mental abuse by the payor;

(8) A party’s inability to provide for his or her own support by reason of a party’s deficiency’s of property, maintenance or employment opportunity; and

(9) Upon written findings, any other factor that the court deems relevant and material."

Aside from the fact that there is a broad catch-all in number 9, the most obvious and useful tool in arriving at a more fair balance of child support and alimony in any case is deviation factor number 2: Tax considerations applicable to the parties. In the example used above, even if Chris and Pat have children, restructuring the support paid by Chris to include some alimony and some child support could result in better tax treatment for the family overall, and greater net income for both.

The Alimony Reform Act simply puts the burden on parties to show these tax considerations to the Judge to assist them in deciding what cases are appropriate for variation. The Judge can then deviate from the guidelines completely, or choose to use a portion of Chris' income in calculating child support and a portion in calculating alimony, a result still consistent with the Section 6(c) limitation.

This ability to deviate, built into the Act, means that the child support limitation is not as limiting as some fear.

The Catch

Yes, there is always a catch. The problem in reaching agreements or judgments that split the total support payment between child support and alimony is that both of these types of payments have different duration. Under the Act, alimony duration is limited by a formula dependent on the length of the marriage, whereas child support duration is limited by the emancipation of the children. These dates may coincide but most likely will not, and the needs of either the children or the lower-earning spouse will need to be taken into account in creating such a deviation.

Finally, as with the rest of the Act, once it becomes effective we will have to see how the Courts of the Commonwealth implement it. Despite our opinion that the reading of this child support section is clear, we are not on the Appeals or Supreme Court and until they rule there is certainly room for interpretation.

For more information about the Alimony Reform Act of 2011 check out MassAlimonyFormula.com

Click here for a Massachusetts Child Support Guidelines Worksheet.

Thank you to Julia Rueschemeyer for inspiring us to finally write this post.

Same-Sex Marriage is Getting Easier, But Same-Sex Divorce is still Tricky

2011-07-29T11:15:00.001-04:00

Same Sex Marriage Map from Wikipedia
this version by StephenMacmanus

Since 2004, same-sex couples have been allowed to marry in Massachusetts. A handful of states have followed suit and begun allowing gay marriage (namely, Connecticut, Iowa, New Hampshire, New York, Vermont, and the District of Columbia). Some couples have traveled to these states to obtain a same-sex marriage, even though their home state does not permit or recognize their marriage. Further, some same-sex couples that have married in states permitting their marriage have since moved to states that do not recognize their union.

What happens if these couples want to later dissolve their marriage?

A few states that do not permit same-sex marriages, most vocally Texas, have refused to recognize same-sex divorce as well. In opposite-sex marriages, marriages from one state are recognized by all of the other states. However, the federal law DOMA (the "Defense of Marriage Act") states that no state is required to recognize same-sex marriages from other states. Therefore states that don't allow same-sex marriages can choose to not recognize same-sex marriages from other states as valid marriages.

The rationale behind not allowing same-sex divorce is that those states will not dissolve a legal relationship that they refuse to recognize as valid. For a same-sex married couple that married in Massachusetts but later moved to a state that, like Texas, which won't permit their divorce, obtaining a divorce may prove to be far more complicated than for their opposite-sex counterparts.

Massachusetts requires that parties to a divorce case must have lived together in Massachusetts, and one of the parties must still live in the state when the cause for divorce occurred. Alternatively, if the cause of divorce occurred in Massachusetts, or if one of the parties has lived in Massachusetts for one year, the state will be able to hear their divorce case. If a same-sex couple married in Massachusetts and later moved to Texas, they can't get divorced in Texas or Massachusetts unless they can meet these requirements in Massachusetts, which usually means moving to Massachusetts for at least some period of time.

On the other hand, an opposite-sex couple that married in Massachusetts but later moved to Texas would simply have to meet the jurisdictional requirements of Texas if one of them decided to file for divorce there.

This is just one of the ways that the Federal Law DOMA and the discriminatory enforcement of laws in some states relating to same-sex marriages continues to cause unequal treatment of these same-sex couples.

Should you have any questions about divorce, same-sex or otherwise, contact Attorney Justin L. Kelsey, or call 508.655.5980 to schedule a free one hour initial consultation.

How should a Child's Age affect their Parenting Plan?

2011-07-27T10:00:00.000-04:00

It doesn't take a child development specialist to know that children of different ages have different needs. But how do we apply this knowledge to create age-appropriate parenting plans?

The greatest key to working out an appropriate parenting plan regardless of age, is being able to communicate effectively with your co-parent (or take advantage of resources to help you communicate effectively such as mediation or collaborative divorce).

But if you are not able to work out a plan directly, or need assistance in figuring out what might work best, there are resources available.

Zero to Three: Parenting Issues and Parenting Plans For Young Children is an article devoted specifically to the developmental needs and corresponding parenting plans for very young children.

In Massachusetts, the Court recognizes that their are certain developmental stages that each child goes through, and that it is important for both parents to be involved in the child's life for their development to be complete. In an attempt to recognize at least some generalities in these differences, a committee of mental health practitioners, family law lawyers and Judges wrote a very useful guide to shared parenting called Planning for Shared Parenting: A Guide for Parents Living Apart.

In addition, a similar committee of Massachusetts judges, practitioners and mental health professionals produced Model Parenting Plans, which in many ways correspond to the recomendations suggested by the earlier Planning for Shared Parenting brochure.

At Kelsey & Trask, P.C. we have created a Parenting Plan Worksheet to help you visualize these Model Parenting Plans and/or other Custom parenting plans on a color-coded Calendar.

Is Divorce different for Men & Women?

2011-07-26T10:00:00.000-04:00

I recently read an article written by a professional whose firm handles divorce cases for women only. At Kelsey & Trask, P.C. we represent both men and women going through divorce, and the statement made by this other firm got me thinking. If you choose only to represent women then you must think there is something unique about how they experience divorce which you think you can help with (or conversely something unique about men's experience that you don't want to help with).

In my experience having represented both men and women, everyone experiences the loss, the frustrations, the anger, the relief, and all of the other emotions of divorce differently. Although I have noticed some similarities across cases, they often depend more on the financial similarities between those cases, than the role of men or women.

For example, there are still many cases which fit into the traditional model of a homemaker wife and wage earning husband. There are of course similarities across cases about how homemaker wives experience financial distress and may need more assistance in understanding the finances of the marriage. Similarly, when the mother has been the primary caregiver for the children, father may need more assistance in understanding how to parent effectively on his own.

However, I have also handled cases where the wife was the main wage earner, and the husband the primary caregiver to the children. And much more typically today, we handle cases where families share these responsibilities.

Because individual cases vary so greatly, I don't think any generalizations about how women or men experience divorce differently can be all that useful. The best advice for anyone going through divorce I believe applies equally to both men and women: be calm, be reasonable, be forthcoming, and seek help when you need it.

Is a Friendly Divorce Possible?

2011-07-25T11:24:00.000-04:00

This question was recently discussed on a LinkedIn discussion board that I follow, and the consensus was clearly that friendly divorce IS possible. This is also the message of a recent Wall Street Journal article: The Divorce Generation.

That doesn't mean that a friendly divorce is easy or even possible in every case. But more and more people who have reached the unfortunate conclusion that their marriage is over, do not want to have the drawn out and angry divorce that their parents had. To respond to this desire to find a better way, more and more attorneys are offering alternative dispute resolution services, to end your marriage in a better, more civilized way.

Both mediation and collaborative divorce offer ways to accomplish the "friendly divorce." To learn more about these options click the links below:

Mediated Divorce
Mediation Pros and Cons

Collaborative Divorce
Collaborative Pros and Cons

What is Split Custody?

2011-07-22T10:00:00.001-04:00

Split Physical Custody usually refers to a situation where there are multiple children and one or some of the children reside primarily with one parent, while other of the children reside primarily with the other parent. Split custody is unusual because it is more typical that the parenting schedule that works for one child will work best for the other children as well.

However every family situation is unique which is why parenting plans should be tailored to each individual family, and in some situations it may be appropriate,or even beneficial, to divide children between households.

Alimony Reform Act approved Unanimously by the House

2011-07-21T22:59:00.002-04:00

According to the Boston Globe, the Massachusetts House has approved the Alimony Reform Act of 2011 unanimously and the bill now waits for a vote by the Senate.

To read more about the act visit MassAlimonyFormula.com

Is Child Support Different if we have Joint Custody?

2011-07-01T10:00:00.001-04:00

In Massachusetts, the Massachusetts Child Support Guidelines are based upon the child(ren) having a primary residence with one parent and spending approximately one third of the time with the other parent.

According to the Guidelines, when two parents share equally, or approximately equally, the financial responsibility and parenting time for the child(ren), the child support shall be determined by calculating the child support guidelines twice, first with one parent as the Recipient, and second with the other parent as the Recipient. The difference in the calculations shall be paid to the parent with the lower weekly support amount.

To make this "cross-guidelines" calculation a little faster and easier, we have created a Joint Custody Child Support Worksheet (also available in a mobile version for use on smart phones).

10 Do's and Don'ts for Divorce in the Internet Age

2011-06-14T10:00:00.003-04:00

The latest crazy Facebook Divorce story is just another reminder of how the internet age has changed divorces. It is also a subject that we have written about many times here. So we thought a simple list of Do's and Don'ts might be helpful to summarize our advice on getting through a divorce in the era of facebook, twitter and google. If you or someone you know is getting divorced please consider the consequences of how you lead your online life, and follow these simple rules.

1. DO Get a new e-mail address. Gmail, Live, Yahoo and many others offer free e-mail addresses. You shouldn't use work e-mail for communications related to your divorce case or they might not be considered privileged, and your personal e-mails may be compromised by your ex.

2. DO Change your Passwords (E-mail, Voicemail, Bank Accounts, Facebook, Twitter, etc.). Your ex can probably guess most of your passwords, and that's assuming they aren't saved in your internet history on your old shared computer. See DON'T #2 as well.

3. DO Learn about privacy settings. Social networking sites like Facebook have many settings that can be changed to hide portions of your profile or specific posts from all users or even select individuals.

4. DO Backup your digital data. Any shared computers are subject to unwanted deletions (accidental or purposeful), and even your personal computer is subject to all the usual risks (breakdown, viruses, tampering, etc.).

5. DO Find out how to save texts and e-mails. Many programs and phones delete old e-mail or texts to preserve space. If you don't save that incriminating text your ex sent you when they were drunk, then you can't show the Judge.

1. DON'T Lie on Facebook, Twitter or other places online. Would you send a letter to a mutual friend telling them lies about your relationship with your ex? Would you tell a stranger (who might know your ex) lies about yourself? No; obviously that would be pretty stupid because they might make it back to your ex. Everything you post online is just as dangerous, far more likely to end up in the wrong hands, and sometimes impossible to delete once posted.

2. DON'T Use Passwords that are easy to guess. Your ex also knows your birthday, your anniversary (probably) and your children's birthdays. If you use these for your passwords your ex could guess them.

3. DON'T Lie to your spouse online or in an e-mail. Just because it's easier to pretend to be Mrs. Doubtfire online, doesn't mean it's any better of an idea than doing it in real life. Even though Sally Field's character can't recognize her own Husband when he's right in front of her face, it is very unlikely your spouse will be fooled, even online. Even worse, any evidence you might find will probably backfire on you because of the false claims used to obtain the information.

4. DON'T Brag about new relationships. Updating your relationship status or posting pictures with your new beau might seem like a fun idea at the time, but making your ex jealous unnecessarily could prolong your divorce case. Settlement requires both sides, and negative emotions can often delay that process.

5. DON'T Send that Angry E-mail/Text. It's far too easy to hit reply and react to the frustrating message your ex just sent you. But consider sending a draft to your attorney to see what they think before you respond. If you're ashamed to show your attorney then it's probably something you shouldn't be sending.

Divorce in the Facebook Era

2011-06-06T10:00:00.003-04:00

Facebook, Twitter, Flickr, Myspace, and Google have changed how we live and connect socially in many ways, and these changes extend to how we break up as well. Even if you're not a member of Second Life, you likely have a second online life made up of your Facebook posts pictures and tags. So what happens when you get divorced? When do you change your relationship status? What do you do with tagged pictures of both of you? Do you unfriend your ex?

All of these questions and more were explored in a recent Gizmodo article: How to Survive the Modern Day Breakup. The basic takeaway point from the article is that you should use the same common sense prudence in your online life that you should use in your offline life.

For example, you wouldn't throw away family pictures just because you're getting divorced, but you might put them away in storage for a while. Similarly, you might want to remove your online pictures and save them on a hard drive, CD or DVD that you keep but put away for now.

Another example, is how you should handle relationship status changes. You might now want to call all your friends and tell them you're getting divorced. Similarly, you can change your relationship status on Facebook without having it appear in everyone's news feed by changing the privacy settings for your status.

Finally, consider what you write online to be as public as what you tell your most gossipy friend. If you don't want your comments to make their way back to your ex, then don't tell them to mutual friends, and don't post them online.

We're Moving!

2011-06-03T10:27:00.000-04:00

On Thursday, June 9, 2011 and Friday, June 10, 2011 the offices of Kelsey & Trask, P.C. will be closed while we relocate to our new office. On Monday, June, 13, 2011 Kelsey & Trask, P.C. will open its doors at a new location conveniently located on the Framingham/Natick border near the Mass Pike (Exit 13), Rt. 30, Rt. 9, Rt. 27 and Rt. 126.

Kelsey & Trask, P.C.'s new address is: 160 Speen Street, Suite 202, Framingham, MA 01701.

Our telephone, (508) 655-5980, and fax number, (508) 655-5981, will not be changing.

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Update on the Alimony Reform Act of 2011: The Winds of Change

2011-05-27T13:31:00.001-04:00

On May 18, 2011, a public hearing took place at the Massachusetts State House before the Joint Committee on the Judiciary. The bills that garnered the most attention involved human trafficking, redefining joint custody, and the Massachusetts Alimony Reform Act of 2011 (S0665). While efforts to reform alimony in Massachusetts have fallen short in the past, the atmosphere was one similar to watching an athlete jog a victory lap.

In a forum designed to encourage debate and dissenting opinions, there was no notable opposition to the bill, as the Joint Task Force established by the Judiciary Committee seems to have crafted a bill that expected to pass this session. Steve Hitner, the co-founder of the Mass Alimony Reform group, received a standing ovation and a round of applause just prior to testifying. Usually, such welcomes operate against the rules of decorum, but Committee co-chairs Eugene O'Flaherty (D-Chelsea) and Cynthia Stone Creem (D-Newton) allowed it, recognizing the efforts of Hitner and other members of the Task Force in reaching a realistic middle ground.

We at Kelsey & Trask have already voiced our support for the proposed bill, and if it indeeds becomes the law in Massachusetts, we will continue to advocate for our clients under the new law.

If you're interested in seeing a summary of the bill's changes and viewing a calculator for the proposed formulas visit MassAlimonyFormula.com.

You can view the full video of the Joint Committee hearing here.

Como divorciar-se quando não falo inglês ?

2011-05-18T12:14:00.001-04:00

Mesmo que não fale inglês, o probate & family courts de Massachusetts tem sido acessível a todos. Se você não fala inglês suficiente e tem dificuldade de entender o juiz, ou preencher algum formulário, a court apontara um interprete para estar presente em qualquer audiência Pela Secretaria de Serviço de Interprete.

Lembrando que, se sua língua nativa e português ou espanhol (como representa 86% que não falam inglês das pessoas na court de Massachusetts), a court tem liberado formulário e declaração com instrução nas línguas citadas,que poderão ser acessadas para download aqui.

Versão Inglês / English Version
Versão em Espanhol / Spanish Version

How do I get Divorced if I don't speak English?

2011-05-18T12:13:00.003-04:00

Even if you don't speak English, the Probate & Family Courts in Massachusetts have made an effort to be accessible to all. If you do not speak English well enough to be comfortable understanding a Judge at a court hearing or to complete the forms, notify the court staff and they can arrange for an Interpreter to be present at any court hearing through the Office of Interpreter Services.

In addition, if your native language is Spanish or Portuguese (which represents 86 percent of the non-english speaking litigants in Massachusetts), the Court has released a short form Financial Statement and Instructions in each of those languages, available for download here.

Unless the irony of this blog title is lost on you, you're probably wondering how someone is supposed to read this who doesn't speak English. For that reason, we are re-posting this Blog in both a:

Spanish Version / Versión española
Portuguese Version / Versão Português

(with special thanks to the friends of our firm who translated this post for us)

¿Cómo me divorcio si no hablo Inglés?

2011-05-18T12:13:00.002-04:00

Incluso si usted no habla Inglés, la Tutela y los tribunales de familia en Massachusetts han hecho un esfuerzo para ser accesible a todos. Si usted no habla Inglés lo suficientemente bien como para entender cómodo un juez en una audiencia en la corte o para completar los formularios, notificar al personal del tribunal y hacer arreglos para un intérprete de estar presente en cualquier audiencia de la corte a través de la Oficina de Servicios de Intérprete.

Además, si su lengua materna es el español o portugués (que representa el 86 por ciento de los litigantes que no hablan lnglés en Massachusetts), el Tribunal ha publicado un breve formulario de Estados Financieros e instrucciones en cada uno de esos idiomas, disponible para su descarga aquí.

Versión Inglés / English Version
Versión en Portugués / Portuguese Version