Does Bad Conduct matter in a Divorce case?

M.G.L. 208 s 34 provides a list of factors for the court to consider in dividing marital property and/or assigning alimony awards. One of these factors is "the conduct of the parties during the marriage." Quite often this is the factor that clients want to talk about the most, but is the least important factor to the court. Although adultery and other offensive behavior may have led to the divorce, the Judges are used to seeing this behavior in so many cases that they become jaded to it and prefer to focus on the financial factors most of the time.

This means that bad conduct which affects the finances (such as spending money on an extra-marital affair or gambling) will be taken into account, but often bad conduct which does not affect the finances will not. However, this does not mean that non-financial bad conduct has no effect at all, and sometimes if it is egregious enough the court may consider its effect on the marriage itself.

Especially if the conduct is significant as in the case of Wolcott v. Wolcott. In that case, the court awarded the Husband approximately 90% of the martial estate, primarily due to the Wife's extremely bad conduct. Because of attempts that the Wife made to find someone in the "mafia" to make her husband "disappear", a jury convicted the wife of solicitation to commit murder, and she served three months in the house of correction before being released on parole.

Although this is obviously an extreme example, the Court indicated that consideration of much less egregious conduct under § 34 has been approved. The Court further indicated that conduct could be considered which harmed the martial estate OR the marriage itself.

Since we have No-Fault Divorce, how about No-Fault Custody?

A recent Op-ed article in the New York times, entitled No Fault of Their Own, suggests that we should change the way custody decisions are made to minimize litigation and fighting over children. The author notes that custody battles, that leave the issue of what is in "the best interest of the child" to the Judge to decide, often result in trials over who is the "better" parent.

This is a valid point. The damage that these types of battles can cause to children warrants a different approach to family law than to the practice of other types of law. While zealous advocacy for a corporate client whose vendor screwed them on a contract might necessitate a trial or dictate destructive cross-examination, in family law this type of litigious approach hurts children.

I often explain to my clients that it is not constructive when they form their view or their goals in a divorce case with a negative comment about their ex-spouse. I want my clients to tell me what their life looks like in five years, so together we can figure out how to get them to that goal, not what they "deserve" to receive from their ex-spouse. I believe this is the point of no-fault divorce.

Similarly, I like the concept of No-Fault custody. I want my clients to tell me what is best for their children, by telling me about their children's schedules, and activities and friends. Telling me what a bad parent the other person is, doesn't describe what is best for the child. In fact it's simply a waste of time unless that parent is so bad that they are unfit.

The author of the op-ed article concludes that mandatory mediation or amendments to the way child support is calculated could help move the system towards No-Fault custody. I believe that regardless of whether couples mediate, or what the child support is, common-sense is the key to resolving custody battles. 99% of custody disputes can be solved by parents, and attorneys, who are willing to set aside the fight, participating in an open an honest four-way conference (with or without a mediator) about what is actually best for the child with reference to the child's needs and activities and schedule.

I don't know if No-Fault Custody is something the state can legislate due to the need for the law to protect against the truly un-fit parents. But I do know that less children would be harmed by divorce if more attorneys and more parents would practice No-Fault Custody.

For more information about proposed resolutions of co-parenting issues, please read our Custody page and the Association of Family and Conciliation Courts brochure: Planning for Shared Parenting: A Guide for Parents Living Apart.

Why are you on Facebook?

It seems like every day I read another article about how Facebook is Becoming a Prime Source for Divorce Case Evidence. Anyone who isn't aware of the risks by now is just not paying attention. But there does still seem to be a great amount of confusion over how private you can really make your Facebook page.

While you are free to adjust your privacy settings any way you want, a chain is only as strong as its weakest link. Any one of your "friends" can share any information that they can see. To think of it another way: consider whether the post you are about to make is something you would be okay with every one of your "friends" repeating out loud to one other person they know (as in "look what Justin just posted!"). Chances are somewhere in that chain is your mother, grandmother, ex, or even a potential employer.

Of course, doing this every time you post may make you wonder, why am I even on facebook if it's going to be this hard?

Well, maybe that's a good question to ask yourself:

Why are you on Facebook?

If you are on Facebook to connect with old friends, then you should think about whether what you are posting is ideal for that purpose.

If you are on Facebook to connect with potential employers, then obviously you may want to post a different caliber of information.

And if you are on Facebook to try and hook up with old lovers, then don't be surprised when it comes up at your divorce trial.

Goals and motivations are important in life and your virtual life should be an extension of your real life (not an escape). Live (and post) accordingly.

¿Cómo me divorcio si no hablo Inglés?

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

Where you get Divorced matters! - British woman loses rights to £1.2 Million Pension

Every state (and every country) has standards for jurisdiction that decide whether or not you can bring a divorce case to their courts.

Where you can file for divorce is an important question because the laws of the state or county where you will file will control how your divorce case is resolved, and those laws can differ significantly. A British woman was recently denied access to file divorce in the United Kingdom courts because her and her Husband last lived together in France. According to The Daily Telegraph, this decision will result in her losing any rights she might have had to her Husband's £1.2m pension.

The laws can also differ greatly by state. In Massachusetts, for instance, the court can consider potential inheritance as an opportunity "for future acquisition of capital assets and income" and award alimony or assign property to one spouse or the other based on that consideration. In many other states inheritance or potential inheritance cannot be considered by the divorce court.

In order to know where you can file for Divorce consult with a local attorney in the jurisdiction in which you live.

In Massachusetts M.G.L. ch 208 §4 requires that to file a divorce case in the Commonwealth the parties must have lived together in the Commonwealth as a married couple, and at least one of them lived in the Commonwealth at the time the cause of the divorce happened. As an exception to this requirement, M.G.L. ch 208 §5 allows you to file for divorce in the Commonwealth if you have been a resident for one year, or if the cause of the divorce occurred in Massachusetts and you are currently a resident. Since the standard for a no-fault divorce is a subjective standard relating only to whether or not you believe your marriage is irretrievably broken down, the Supreme Judicial Court on an interlocutory appeal has ruled that if you lived in Massachusetts when you came to the realization that your marriage is over, that is sufficient for establishing jurisdiction to file for divorce in Massachusetts. Caffyn v. Caffyn SJC-09141 (2004).

If you have questions about divorce in Massachusetts schedule a 1-hour Free Consultation.

What you text can and will be used against you.

We often warn our divorce clients that e-mails they send to their soon to be ex-spouses WILL show up in court. This is because it's almost impossible for two parties involved in an emotional dispute to write correspondence without overtones of disappointment, hurt or anger showing through in tone. This is even more likely in informal correspondence like e-mail.

The same is true for texts, especially now that texts are beginning to replace phone calls as the preferred method of quick short communications. According to this Huffington Post article, "Americans punched out more than 110 billion text messages in December 2008."

There are also significant domestic violence implications with text messaging. For instance, text messages are considered a communication and a violation of a restraining order, even if the victim sent a text message first a reply could result in an arrest and charge of violating a restraining order.

In addition, texts can be another way for abusers to track and control the lives of their victims. This article in the Patriot Ledger makes light of the Tiger Woods scandal and his immature texting, by noting how many wives and girlfriends check their significant other's phone history. This type of monitoring has a darker side when used by abusers.

No matter the context remember that what you put in writing, whether in e-mail, letter, facebook update, tweet, or even a text message leaves a record, and that record could come back to be used against you.

Thanks to DGVElaw for sending us the Patriot Ledger article.

What does it mean to be a Father?

In Tuesday's New York Times, there was an article entitled "Losing Fatherhood" that explores how DNA testing has changed the face of Fatherhood in America. It's an interesting read and raises the question of what does it really mean to be a Father.

Last night on the ABC comedy the Modern Family, the patriarch played by Ed O'Neill (of Al Bundy fame) states that "90% of being a Father is just showing up."

In Modern Family Ed O'Neill's character, Jay Pritchett, has an adult gay son who is in a couple and has an adopted daughter, and an adult daughter who is married with three children as well. In addition, Jay Pritchett has re-married to a younger woman and has a step-son. Although there are three distinct families in the show, all with different "father figures", they are all tied together by their relationship to Jay.

In last night's episode (available online here) Jay plays the role of grand-father, father and step-father and in all of these interactions, Jay shows what it means to be a Father. By just "showing up" he is not perfect, but he is involved, protective and loving. This is especially obvious in the show when his step-son's biological father fails to show up for a visitation.

For me, this show highlights the fact that whether or not a family is "traditional" or "non-traditional" we can all still tell the difference parents can make in a family by being involved and at least "showing-up."

Free One Day Seminar on Coping with Divorce

A group of researchers at Skidmore College will be sponsoring free one-day educational workshops this Fall in the Boston area for parents coping with divorce. At the workshop, you will have a chance to connect with other divorced parents. You will learn strategies for letting go of anger toward an ex-spouse and for moving toward a more peaceful, forgiving perspective. You will also learn strategies for reducing conflict with your ex- over parenting issues.

For more information and to sign up for our FREE coping with divorce workshop and research study: www.tinyurl.com/copingwithdivorce or email: divorce@skidmore.edu or call: (518) 580-8123

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

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.

Congratulations On Your Divorce; Time To Update Your Estate Plan

The following is a guest blog post written by our colleague Danielle G. Van Ess, Esq. of DGVE law, LLC in Hingham, MA.

You might be surprised how many of my new estate planning clients realize, after we’ve talked a little, that their ex-spouses are still named as the primary beneficiary of their life insurance policies or, more often even, their retirement accounts. And given the value of those assets, their reactions in that moment of realization are far less surprising. If you are divorcing or divorced, you need to ensure that you have changed the beneficiary of those and other pay on death type accounts.

And given that you will no longer be sharing your life with your ex-spouse, it’s likely you won’t also want him or her to be the one to speak for you in the event of your incapacity or be the one to make medical decisions for you, including whether to discontinue life support, if you are ever unable to do so yourself. So if you already had such estate planning documents in place (such as a Health Care Proxy or Living Will), now is the time to revise them. And if you have never got around to putting those critically important legal instruments in effect, there’s no time like the present.

But if you are a parent of a minor child, there is an even more important reason to sit down with your estate planning attorney immediately. You must make appropriate provisions for the care of your child in case anything happens to you. Yes, it’s awful to think about, maybe the second worst thing a parent could imagine, but it’s even worse not to address it and leave your child’s fate up to chance. It is your parental responsibility, not to mention a selfless act of love, to do everything you possibly can to ensure that your child be raised by the people of your choosing. It is not enough to choose and discuss it with people privately; it must be memorialized in the appropriate legal instruments. Godparents do not, for legal reasons, count.

While it’s true that if you were to die before your ex-spouse, he or she would be the “natural” guardian of your child and most likely to assume full custodial responsibility, it is also true that he or she might die while your child is still a minor and if yours is the only legal document nominating a guardian (i.e. if your ex-spouse did not also legally name a guardian), your wishes could provide persuasive guidance to the court. But if your ex-spouse were to die before you, the court would likely look to the guardian you legally named to raise your child. If you and your ex-spouse are able to be civil with one another and co-parent as cooperatively as possible for the distinct benefit of your child, see if you are able to agree on and both name the same legal guardians for the sake of sparing your child more uncertainty in the event that you and your ex-spouse should both happen to die at the same time or very close in time.

Those are the bare bones basics. Above and beyond that, there are some more complex considerations. For examples, if you are concerned that your ex-spouse might remarry and then divorce again losing your child’s inheritance to that subsequent ex-spouse, you might consider creating an asset protection trust to secure your child’s inheritance from that as well as other possible (and not at all unusual) possibilities. If you and your ex-spouse have an irrevocable charitable trust, it may be possible to divide it. Or if you and your ex-spouse have established a pattern of gifting that you do not wish to continue, you should be careful to make your change of intentions clear.

Don’t feel overwhelmed. Your estate planning attorney should be able to meet with you and help you identify your most pressing concerns, your most important priorities, and based on that properly advise you and help you create a new plan to meet your new situation so you can move forward into the next chapter of your life with peace of mind knowing you have your legal affairs firmly in place.

If I leave the House, will I lose my Kids?

The most common reason for divorcing spouses to continue living in the same house is because neither wants to leave their children behind. When a parent leaves the home and moves to another location without an agreement for parenting plan in place, they are essentially ceding physical custody to the other parent. Physical custody is simply defined as who the children reside with and unless there is a plan in place, if only one parent lives in the children's home, then that parent necessarily has physical custody (it is possible for a parent to move out with the children, but this is unusual except in cases of abuse).

While many parents will fight over who can remain in the home during this time period, this argument is a distraction from the reality that eventually divorcing spouses will live separate and apart. It makes more sense for the spouse who will eventually move to begin investigating their other options as soon as possible, and for parents to work out a realistic parenting plan prior to that move. Rather than use this argument as a ploy to fight over the children, discussing practical resolutions will focus both parents on how much time each will spend with their child instead of focusing on what they are losing. Divorce will never leave each person whole, but to the greatest extent possible parents should strive to keep their children from getting caught in the middle of any disputes.

Besides an Attorney, what professionals might be involved in my Divorce case?

In a litigated divorce, you will often have the need to involve experts to clarify certain issues, and in some instances to testify.  These can include appraisers, brokers, financial valuation or vocational experts, mental health practitioners, GALs, and parent coordinators.  Whether or not a professional is needed to assist will depend on the issues in your case.  For example, if the parties can agree on the value of real estate than an appraiser would not be needed, but if they can't then a real estate appraiser will be needed to evaluate the value of the asset and potentially testify if the other party disagrees.

The Collaborative Divorce process typically includes a team approach to divorce which utilizes specialized professionals to assist the attorneys.  There are many instances where another professional can assist in moving a case forward and reduce the cost spent on attorney's time.  Here are just some of the types of other professionals that might be involved:

Coach:  Attorneys are not trained to deal with mental health issues, which can range from dealing with the emotional loss in a divorce to dealing with mental illness or personality disorders. A Divorce Coach is a mental health professional that participates in the Collaborative process. In some models the Divorce Coach is only called upon when needed, like a therapist. But the trend is towards involving the neutral Divorce Coach (or in some instances two Divorce Coaches, one for each party) in every step of the process. The Divorce Coach can help the parties deal with their individual emotions that stem from the loss of their marriage, the process of the divorce, and other underlying past issues. In addition, the Divorce Coach can help the parties form a parenting plan and discuss the child related issues in a more constructive manner than the custody/visitation legal context. For more information on the role of a Collaborative Coach read a previous Guest Post: What Does a Collaborative Law Coach do?

Child Specialist: Sometimes the process may also include a Child Specialist, i.e. a mental health professional involved in the case for the sole purpose of helping the parties understand what the children are going through as a result of the divorce, and how to help them. For more information on the role of a Child Specialist read a previous Guest Post: What does a Child Specialist do in a Collaborative Divorce?

Financial Planners:  In cases where the parties could use assistance gathering and understanding their finances and budgets, a financial planner (often a Certified Divorce Financial Analyst) can assist the parties with these issues as a neutral.  Oftentimes, they will also provide potential scenarios showing the different options for support orders or property division and how those different options will affect each party's net worth in the future.  This information and assistance can be very helpful in assisting parties in reaching settlements.

Experts: In a Collaborative case, an expert opinion may still be helpful, and any expert that might be hired in a litigation case could also be hired jointly in a Collaborative case to provide an expert opinion to both parties.  For example a real estate appraiser can be jointly hired by the parties in a collaborative case if they don't know or can't agree on the value of an real property asset.  These experts could include appraisers, bankruptcy attorneys, business valuation experts, etc.

Although there is a cost involved in using any additional professional to assist in moving your divorce case forward, their expertise is cases where they are necessary usually saves time and money that would have been wasted otherwise.

Should I bring my new Significant Other or my Children to Family Court with me?

In most cases bringing your new significant other or your children to court with you is a bad idea.

Bringing a Significant Other:

In most cases having a third party in the courthouse (especially a significant other) inflames the other party and makes settlement less likely. While this is not always the case, the risk of making settlement more difficult is usually not worth the benefit of having a third party there.

Also, court is relatively boring. Your significant other will be able to wait with you in the courthouse but he/she will not be able to attend any family service meetings (i.e. required mediation prior to the court hearing). Court involves a lot of waiting around and there is usually something better that people can be doing with their time. For these reasons I usually recommend that clients come alone to court, but in the end it is your call.

Bringing your Children:

Whether or not the hearing involves your children bringing them to court with you is a bad idea for numerous reasons.

1. There is a saying that in criminal court we see bad people acting their best, and in family court we see good people acting their worst. Family court is a stressful place and oftentimes involves very personal and emotional issues. Exposing your children to this is unnecessary and can be damaging psychologically.

2. There is nothing for children to do in the courthouse. These buildings are not designed with children in mind and are not fun places to be. Your children will be able to wait with you in the courthouse but they will not be able to attend any family service meetings (i.e. required mediation prior to the court hearing) and they are typically not allowed in the courtrooms. Court involves a lot of waiting around and children will be very bored.

3. In the event the case does involve your children, it is even more damaging to have them in court. Children pick up on more than most people give them credit for, and knowing that a court hearing is happening (never-mind being there) can be very stressful for children. Children will take responsibility for the outcome even though they have no control over it and blame themselves if their parent is unhappy. Don't place this burden on your child.

4. Finally, there is no added value to having your children in court. In the unlikely event that the Judge wants family service to speak to your children, you will be given the opportunity to come back with them. Having them there at the time of hearing exposes them to unnecessary stress without any potential benefit.

For more information about best practices to protect your children from the detrimental affects of court actions between parents read the following brochure: Planning for Shared Parenting: A Guide for Parents Living Apart.

Probate and Family Court Funding Crisis in Massachusetts

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."

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

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.

Can a Restraining Order be Permanent?

In our last post we provided information on the three types of orders that can help protect someone from an abusive spouse.

In two scenarios these orders can be permanent:

An abuse prevention order under M.G.L. c. 209A, often referred to as a 209A or restraining order, can be ordered for any fixed period of time up to one year. If an ex-parte hearing (without the defendant) was held for the initial hearing, then another hearing will be set up within ten (10) days to give the defendant an opportunity to tell their side of the story. After that opportunity, the order can be extended for up to one year. At the extension hearing if the plaintiff appears, the court may extend the order for any additional time reasonably necessary to protect the plaintiff. This extension can be permanent if the circumstances warrant that decision.

In addition, pursuant to a divorce case under M.G.L. c. 208, § 18, the Probate & Family Court can order a husband or wife to refrain from placing any restraint on the personal liberty of the other. In Champagne v. Champagne, the Massachusetts Supreme Judicial Court determined that this statute allowed for permanent orders pursuant to the broad language stating "to make such further order as it deems necessary to protect either party or their children, to preserve the peace or to carry out the purposes of this section relative to restraint on personal liberty."

Should Parenting Plans change with the age of the children?

I have recently become a Father and I spend a lot of time amazed at how my daughter changes every day. Those changes mean that her needs continue to change and grow, and paying attention to those changes is part of effective parenting.

Every case is different, especially when it comes to family dynamics, so every case requires your attorney to listen and learn about YOUR family. Because every family is so different, there cannot be specific guidelines on custody and visitation for every family or even every child.

The Court does try to recognize 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, and also that at each stage, a child's needs are different.

In an attempt to recognize at least some generalities in these differences, a committee of mental health practitioners, family law lawyers and Judges was formed. They wrote a very useful guide to shared parenting called Planning for Shared Parenting: A Guide for Parents Living Apart. Our firm recommends that any parent involved in a custody case read this brochure and use it as a starting point for thinking about and discussing how their child's unique needs can be met by a well-thought out and tailored Parenting Plan, and how that Parenting Plan will have to change as the child grows older.

What is a Complaint for Modification?

A Complaint for Modification is the action by which you can request that the Court make a change to past Court Judgments. If the Orders that you want changed are only Temporary Orders then you must request a change by Motion.

A Complaint for Modification is the beginning of a new action and should only be used to change permanent orders which are called Judgments. 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 Court's Order.

A "significant material change in circumstances" is 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.

What isn't a Parent Coordinator?

In our previous post we explained what a parent coordinator is.

But it's also important to point out that Parent Coordinators cannot solve all of your problems, especially if you're not willing to work with them.

Parent Coordinators are NOT Therapists. They are not hired to help you deal with your personal issues, but rather for the specific purpose of helping you learn to co-parent effectively.

Parent Coordinators are NOT Couples Therapists. They are also not hired to help you "fix" or understand your relationship with your ex. Their job is to help you help your children by learning to communicate better.

Parent Coordinators are NOT Mediators. While some of what they do is similar to mediation, you're not trying to reach an agreement on a specific issue. One specific issue may result in your calling the coordinator, but long term the process is not about mediating one issue, but learning how to resolve all parenting issues more civilly.

Parent Coordinators are NOT Judges. Sometimes a parent coordinator will make a decision similar to a Judge if the parties have agreed to give them that authority. However, any decision is only binding until reviewed by the Court. And the use of this power is unusual because it defeats the goal of having the parents begin to work these issues out together rather than always seeking outside help.

Parent Coordinators are NOT Guardian Ad Litems. A Guardian At Litem reports to the Court on issues such as custody, after an investigation. It is not the job of a Parent Coordinator to report to the Court or to take sides.

This is your life, but it’s my job. And that’s a good thing.

Many people hire a lawyer for their divorce case simply because they are afraid to navigate the Court system by themselves. Rightfully so, people often fear that they will be taken advantage of or make mistakes if they represent themselves. But hiring a lawyer for your divorce case has other benefits as well.

I often explain to my clients that there are three benefits to hiring a lawyer.

1. The first benefit is the most obvious to clients. It is the peace of mind that comes with knowing you have hired an expert who will ensure that your rights are protected. We accomplish this by explaining those rights to you, by helping you understand any documents before you sign them, and by enforcing those rights in court when necessary.

2. The second benefit is the practical side of the first. We are able to enforce your rights and advise you about them, because of our training and experience as lawyers. We know about statutes and case law that you do not, and we know the process of the court system, such as what forms to fill out, who to talk to in scheduling, etc.

3. The most overlooked and final benefit of hiring a lawyer is what the title of this blog is referring to. The third benefit of hiring a lawyer is the simple fact that we are not you. Especially in a divorce case, the issues involved are emotionally charged and it is impossible for an individual to separate that emotion from the facts and look at their case objectively. Even divorce attorneys hire other divorce attorneys when they get divorced. Just knowing the law and the court system isn't enough to navigate a divorce successfully. You need an objective adviser, who can tell you when you are letting emotion cloud your judgment.

For example, many clients are very upset when their spouse has met someone else. It is human nature for us to focus on the affair and want that affair to be discussed in Court, and to be a major factor in the divorce evaluation. But any good family law attorney in Massachusetts will explain that conduct in the marriage (such as an affair) is only one of the many factors in a divorce case. Concentrating only on that fact, to the exclusion of the other factors, would be a detriment to your case.

Because this is only my job, and not my life in the Judge's hands, I am able to objectively evaluate what factors need to be presented to the Judge. And in the end, that objectivity benefits you, the client.

If I File for Bankruptcy, does the Automatic Stay Protect Co-Debtors?

Generally, the automatic stay provisions of the bankruptcy code at 11 U.S.C. § 362(a) apply only to the debtor filing for relief from the bankruptcy court. However, in certain circumstances, the fact that a debtor filed for Chapter 13 bankruptcy can stop collection action against co-debtors, even if the co-debtors did not file bankruptcy. The “co-debtor stay”, set out at 11 U.S.C. § 1301(a), is a section of the Bankruptcy Code that prevents collection action on consumer debts against co-debtors of the person filing for Chapter 13 bankruptcy for the duration of the bankruptcy case. The co-debtor stay operates to delay collection efforts against individuals close to the debtor who have obligated themselves on debts incurred by and for the benefit of the Chapter 13 debtor. Generally, the co-debtor stay applies with respect to any consumer debt for which another individual is also liable, and it continues until the Chapter 13 case has ended.

The obligation of the co-debtor does not disappear; the co-debtor stay only serves to postpone collection actions by the creditor. If you repay a consumer debt at 30 cents on the dollar through the Chapter 13 plan, your co-debtor will be liable for the remaining 70% after the petitioner’s debts are discharged. However, during the time you are in Chapter 13, co-debtors are protected from further collection action. A Chapter 13 plan may (but is not required to) seek to re-pay certain joint debts in full, in order to protect the joint debtor.

The co-debtor stay only applies to consumer debt and it only applies in Chapter 13. The co-debtor stay does not apply to Chapter 7 or Chapter 11 cases, and does not apply to non-consumer debts, which are usually tax debts, debts incurred with a profit-making motive, or debts relating to the dishonor of a negotiable instrument (such as a “bad check” debt). Many courts have determined, however, that Domestic Support Obligations (such as alimony and child support are regarded as consumer debts for the purposes of this chapter).

If you are considering filing a petition for relief under the Bankruptcy Code, the section you file under could have implications with respect to the co-debtors. If all (or a portion) of your debts are joint with another person, that fact could be one of many factors to consider when deciding whether to file a Chapter 7 or Chapter 13 petition.

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

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.

Restraining Orders are not Force Fields

In tonight's episode of Community ("The Psychology of Letting Go" on NBC) one character treats his Restraining order like a force field. By moving towards the defendant, he forces the defendant of the restraining order to move away so that the defendant can stay at least 25 feet away.

In reality, restraining orders are not force fields. Although, a plaintiff cannot technically violate their own restraining order, a Judge will likely vacate the restraining order if they find out that the plaintiff has been contacting or approaching the defendant. That type of behavior demonstrates that the plaintiff is not in fear of the defendant.

In Massachusetts, M.G.L. ch. 209A provides that a plaintiff can obtain an abuse prevention order (commonly referred to as a restraining order) if there is attempted or actual physical harm or "placing another in fear of imminent serious physical harm." If a plaintiff is able to approach or contact the defendant then that is strong evidence that they are not in fear of imminent serious physical harm.

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

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.

How Long after a Divorce do I have to wait before getting Re-married?

In Massachusetts there are statutory waiting periods that control when the divorce becomes final (also called Absolute). Until the divorce is officially final you cannot remarry anywhere without committing bigamy (i.e. being married to two people).

In Massachusetts the length of this waiting period depends on the type of divorce case.

In a Joint Petition for Divorce under Section 1A of M.G.L. c. 208, if both parties agree that there has been an irretrievable breakdown of the marriage and agree on all other issues related to their marriage, as described in a Separation Agreement, then you can file a Joint Petition for Divorce. The Court will set a date and time for an uncontested divorce hearing, once you have filed a Joint Petition for Divorce, a certified copy of the Marriage Certificate, an Affidavit of Irretrievable Breakdown, a Certificate of Absolute Divorce or Annulment, a Separation Agreement, two Rule 401 Financial Statements, and two Certificates of Attendance at the Parents Apart Program (if there are minor children of the marriage).

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.

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. If the parties are unable to settle their divorce case, then 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. Similarly after 6 months have passed since the date of service, a Complaint for Divorce may be settled and a Separation Agreement presented to the Court. If the Court approves the Separation Agreement then the Court will issue a Judgment of Divorce Nisi and it will become Absolute after a further ninety (90) days.

This means that if you file a Complaint for Divorce, whether or not there is a trial or a settlement, you are not legally and officially divorced until 90 days after the issuance of the Judgment of Divorce Nisi.

In addition, once the divorce is final there is typically a three-day waiting period for obtaining a marriage license after the application is submitted to your town or city hall. However, it is possible to apply to the Probate Court for a waiver of this three-day period for good cause.

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

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.

The Perfect Divorce: Does it Exist?

NO.

That was easy, next blog post... No, you want more than that? Okay:

Divorce is by definition about the failure of a plan. You got married, you took vows, and it didn't work out. Whether or not you are about assigning blame (and there is usually enough to go around), divorce is about picking up the pieces of a failure. Accepting that disappointment is as important a step in moving on as accepting that the marriage was over in the first place.

If you take that failure personally, you should discuss those feelings with friends, family or a professional therapist. You shouldn't ignore them because you need to find a way to move past them in order to deal with the practical realities of dividing up a marital life.

With respect to finances, divorce means dividing up a business partnership, and there is no perfect or ideal way to do this. In Massachusetts, the court can consider numerous factors in how to do this (M.G.L. c. 208 s34), but in practice most cases settle, and they settle based on what both parties can live with. You won't get everything you want, but neither will the other side.

With respect to children, even if you do the best you can parenting apart is never ideal. In many situations and for many relationships it may be better than parenting together, but even the best parents can't undue the loss a child feels when their parents break up. I was reminded of this when reading a simple quote from an interview with Jack Black in the Guardian, in which he matter-of-factly indicates that his parents divorced and as a kid the simple fact "that they can't live with each other makes you feel there's something wrong with you." In many ways parenting is about doing your best with what you have anyway, and no where is this more true than in parenting apart. You can educate yourself and make the best of it, and minimize the trauma on your children. But to do that you have to first accept that this situation is not perfect, and find ways to compensate.

At the end of the day, realizing that there is no perfect divorce is an important step in figuring out how to look at the future rather than dwell on the failures of the past. Sometimes the cliché is true: whatever doesn't kill you makes you stronger.

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

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

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

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.

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

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

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.



You may reprint or distribute this Infographic on your website so long as the copyright and contact information for Kelsey & Trask, P.C. remains attached to the bottom of the image.

To reprint copy and past the following code:

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Click here for more information about Modifications in Massachusetts.

Does my Ex have a right to my inheritance if we get divorced? What is a Vaughan Affidavit?

The short answer is that Judges in Massachusetts can consider inheritance or potential inheritances when dividing property in Massachusetts. This does not mean that inheritances are split equally but they will play a part in how property is divided and may affect support orders as well. Whether an inheritance has been received or not can make a big difference in how it affects the division and support.

Inheritances Received During or Before the Marriage

In Massachusetts the division of marital property in a divorce case is controlled by M.G.L. Chapter 208 Section 34, which states in pertinent part:

"In addition to or in lieu of a judgment to pay alimony, the court may assign to either husband or wife all or any part of the estate of the other, including but not limited to, all vested and nonvested benefits, rights and funds accrued during the marriage and which shall include, but not be limited to, retirement benefits, military retirement benefits if qualified under and to the extent provided by federal law, pension, profit-sharing, annuity, deferred compensation and insurance."

This means that the Judge in a divorce case can consider how to divide all property that is in the name of either person, and this includes property that was inherited during or before the marriage. However, as part of the division, the Judges can consider the "contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates..."

As an example, if a Husband received inherited property prior to the marriage, then the Wife likely didn't have anything to do with the acquisition. But if the inheritance was then placed in a joint account or used to purchase a marital home, then it is arguable that the Wife had a part in the preservation or appreciation of the asset. This is called "merging" an asset into the marital estate. If the Husband inherited property during the marriage, then it is also possible the Wife contributed to the acquisition if she, for example, had a good relationship with the deceased. These are the types of factors that will be taken into consideration in deciding what an "equitable" division of the inherited property would be.

Inheritances Likely to Received After the Marriage

One of the factors that the Judges in Massachusetts must consider in dividing assets and determining alimony is the "the opportunity of each for future acquisition of capital assets and income." This could include the possibility or likelihood of a future inheritance. Although inheritances aren't guaranteed because living relatives can change their wills before they die, the Court can consider how likely that is to happen, especially if the potential inheritance is significant.

In one case a party's parents objected to providing information about their estate plan arguing that because an expectancy of inheritance cannot be presently divided it should also not be discoverable. Vaughan v. Vaughan, SJC Single Justice, No. 91-485, p. 3 (1991) (unpublished).

The Single Justice in Vaughan held: "Although it is true that Allan's expectancy interests are not subject to division, a [probate court] judge, nevertheless, might properly take them into account in determining what disposition to make of the property which is subject to division."

Since the Vaughan case it has become common practice in a case where there is a potential inheritance for the relative to provide what is referred to as a Vaughan Affidavit describing in some detail the extent of their estate and their current estate plan. A properly completed Vaughan Affidavit should provide you with enough information to know whether a potential inheritance is significant enough to be considered by the Judge when determining the current division or support orders.

What is a Parent Coordinator?

According to the Guidelines for Parenting Coordination developed by the AFCC Task Force on Parenting Coordination:

"Parenting coordination is a child-focused alternative dispute resolution process in which a mental health or legal professional with mediation training and experience assists high conflict parents to implement their parenting plan by facilitating the resolution of their disputes in a timely manner, educating parents about children's needs, and with prior approval of the parties and/or the court, making decisions within the scope of the court order or appointment contract."

In other words, a Parent Coordinator helps parents avoid court by mediating their co-parenting disagreements.

Although some states have statutes that define Parent Coordinator's powers, in Massachusetts there is no statutory authority for parenting coordination. Judges differ on whether they have authority to order Parent Coordinators without a statute granting them that authority. Arguably the discretion afforded Judges to create orders for the best interest of the children could be extended to order the parents to cooperate with a parent coordinator. In all cases, though, Judges can affirm an agreement of the parties to use a parent coordinator.

This type of agreement is often recommended by attorneys in high conflict cases as a potential solution to avoiding multiple court hearings. In many instances a parent coordinator can be cheaper than going back to court again and again, and more effective because they not only assist with the immediate problem but help parents learn how to communicate with each other. If successful, the parents will no longer need the assistance of the court or eventually even the parent coordinator to help them co-parent effectively.

The Best Advice for Surviving Divorce: Remember the Serenity Prayer!

When divorcing clients get upset, I find it is most often due to things they cannot control, such as the behavior or choices of their ex-spouse.  The best counsel I have found in those situations is to encourage clients to work on the items they have control over, and to find ways to make peace with the things they cannot control.  This advice is essentially stolen from the serenity prayer:

The things you cannot change:

In a divorce case, you do not have control over what your spouse does.  You can ask the court to make orders that limit or direct certain behavior, but those orders are still only pieces of paper.  Violations of those orders will have consequences, but that process can still be time consuming and often frustrating for clients.  When that frustration takes hold, it is important to remember that you do not control what other people do, but you do control your reaction to what they do.

Courage to change the things you can:

When you want to react to the problems your ex is creating with their behavior, have the courage to respond appropriately and take the high road.  Too often frustration over bad behavior leads to more bad behavior between spouses.  Especially in cases with children this feedback cycle can be destructive.  Having the courage to be the better person, even when it is hurtful to your pride or frustrating, will ultimately help you find more peace with a bad situation because you are taking control over the things you can change: your own behavior.

And may you be granted the Wisdom to know the difference:

When you are unsure of how you should act or react in your divorce case, take advantage of the wisdom of others and the resources available to you.  Attorneys, counselors, and family support are all people that can help provide you with perspective on your actions and reactions.  It is understandable given the grief involved in ending a marriage that spouses will often react emotionally at first.  But taking the time to understand those emotions, and seeking objective assistance when needed, will provide you with the wisdom to separate out frustration over things you cannot control from decisions about how you should proceed with the things you can change.

You may not expect an attorney to advise you to pray when you're frustrated with your divorce case, but I have found that the Serenity Prayer extends beyond religion and if you prefer a secular version there are some similar words provided by Mother Goose:

For every ailment under the sun
There is a remedy, or there is none;
If there be one, try to find it;
If there be none, never mind it.

Mass Attorney General asking Federal Judge to declare DOMA unconstitutional.

According to a Boston Globe article, Massachusetts Attorney General Martha Coakley filed a request with the U.S. District Court last Thursday, February 19, 2010, to rule on the constitutionality of the Federal Defense of Marriage Act (DOMA). The reasoning behind the A.G.'s request is that DOMA forces Massachusetts to discriminate against same-sex spouses in order to maintain certain federal funding for programs like Medicaid and Veteran's burials.

These are only two examples of how DOMA affects same-sex spouses. Despite Massachusetts law granting same-sex couples the right to marry, there are Federal benefits that traditional spouses enjoy which same-sex couples do not because of DOMA. Many of these differences are related to tax benefits for spouses. For example, spouses can transfer property between each other without certain tax consequences where non-spouses cannot.

This can be a particularly difficult issue in same-sex divorces as it relates to retirement accounts. Because retirement accounts are defined by Massachusetts law as martial property, divorces often result in a non-taxable transfer of retirement funds between ex-spouses. When the division is completed by a Qualified Domestic Relations Order (QDRO) the transfer does not result in any tax consequences. But transfers between non-spouses of retirement funds are treated like a liquidation resulting in income tax and a tax penalty (if the plan participant is below retirement age). Since same-sex spouses are not spouses for federal purposes retirement account funds cannot be transferred without tax consequences.

Although you are unlikely to hear a lot of discussion relating to same-sex divorce in support of the same-sex marriage debate, the discrimination against same-sex spouses becomes even more evident when these spouses request the protection of divorce laws.

Even if you believe that states should have a right to decide the same-sex marriage issue state-by-state, it's hard to support discrimination by the Federal government of same-sex couples in the states that have already decided in favor of same-sex marriage. DOMA effectively throws the weight of the Federal government against same-sex marriage rather than remaining neutral on the issue. Good luck to the Mass A.G. in restoring at least some balance.

Divorce and Taxes: Issue #3. Child Dependency Exemptions

In any divorce case involving children, child support is not the only financial issue to be determined. Children's health insurance, medical expenses and sometimes extracurricular activity expenses will be determined by the Court. In addition, the Court can determine (or the parties can agree) on who may claim the child dependency exemptions on their income tax returns.

Issue #3. Child Dependency Exemptions: According to IRS Publication 504 you can claim a qualifying child as your dependent if the following are true:

"1. The child must be your son, daughter, stepchild, foster child, brother, sister, half brother, half sister, stepbrother, stepsister, or a descendant of any of them.

2. The child must be (a) under age 19 at the end of the year and younger than you (or your spouse, if filing jointly), (b) under age 24 at the end of the year, a full-time student, and younger than you (or your spouse, if filing jointly), or (c) any age if permanently and totally disabled.

3. The child must have lived with you for more than half of the year.

4. The child must not have provided more than half of his or her own support for the year.

5. The child is not filing a joint return for the year (unless that joint return is filed only as a claim for refund)."

There is an exception for section 3 for divorced or separated parents (or parents who live apart). A child of divorced or separated parents can be claimed if the following four statements are true:

"1. The parents:

a. Are divorced or legally separated under a decree of divorce or separate maintenance,

b. Are separated under a written separation agreement, or

c. Lived apart at all times during the last 6 months of the year, whether or not they are or were married.

2. The child received over half of his or her support for the year from the parents.

3. The child is in the custody of one or both parents for more than half of the year.

4. Either of the following applies.

a. The custodial parent signs a written declaration, discussed later, 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. (If the decree or agreement went into effect after 1984, see Divorce decree or separation agreement that went into effect after 1984 and before 2009 , later.

b. A pre-1985 decree of divorce or separate maintenance or written separation agreement that applies to 2010 states that the noncustodial parent can claim the child as a dependent, the decree or agreement was not changed after 1984 to say the noncustodial parent cannot claim the child as a dependent, and the noncustodial parent provides at least $600 for the child's support during 2010." See Child support under pre-1985 agreement

There are more specific examples discussed in the publication, but the simple explanation is that a custodial parent with more than 50% of parenting time will have the right to claim the child as a dependent unless they voluntarily (or by order of the court) transfer that right to the other parent. If you receive an agreement that one parent is not going to claim the child dependency exemption you should also obtain a Form 8332 Release confirming said agreement.

The reason the exemption matters is because the standard deduction per child for tax year 2010 is $3,650. This means that every child you can claim as a dependent reduces your adjusted gross income by $3,650, which could have a significant effect on your overall tax liability. It is important, therefore, to discuss these tax exemptions when negotiating child support and other financial issues, because they may have significant value (and in some cases more value to one party than the other if you are in separate tax brackets).

Click here to read Divorce and Taxes: Issue #4. Property Transfers.