Many parents facing the prospect of a divorce or break-up where children are involved place a great deal of importance on obtaining "sole physical custody" or "joint physical custody" of the child or children. Parents are often devastated to find out that their former significant other is seeking sole physical custody, as if that phrase automatically means that there is an intent to preclude one parent from the child's life. These phrases have unfortunately taken on pop culture definitions that more often than not vary from reality.
Physical custody refers to where the child lives. If a child lives primarily at one place, usually thought to be about two-thirds of the time or more at the same residence, that child is considered to be in the "sole physical custody" of the parent who shares that address. Usually, children who are living in the sole physical custody of one parent have some sort of "visitation" schedule with the "non-custodial" parent. The details of that visitation schedule, also sometimes called a "parenting plan", are dependent on both parents. For some "non-custodial" parents it is every other weekend, for others it could be two or three days each week.
Even a parenting plan that falls into that two-thirds vs. one-third mold still includes a significant amount of time that the children are with the "non-custodial" parent.
In addition, not having sole physical custody does not mean that a parent cannot be involved in major life decisions involving the child. Or put another way, non-custodial parents are still able to contribute to the major life decisions necessary for their child. The ability to be involved in such decisions is determined by which parent or parents have legal custody of the child. In other words, while the sole physical custodian of the child may decide what clothes your child will wear to school, legal custodians can (and in most cases should) still be involved in decisions such as who the child's doctor will be, whether or not your child will have surgery, and what school the child will attend.
Finally, absent a restraining order or other order of the court to the contrary, all parents have the right to attend their children's public events, such as sporting events, concerts, etc. Most courts do not consider these types of public events the exclusive time of either parent. Although how you interact with the other parent at these events may depend on your ongoing relationship and the appropriateness of said interaction, it is usually still beneficial for a child to know that both parents are there cheering them on, even if separately. While this is not necessarily "quality time" with your child it remains another way non-custodial parents can remain involved in their children's lives.
Friday, March 30, 2012
Divorce and Taxes: 6 Issues to Be Aware of - Issue #1. Marital Status
In all cases a divorce will affect some part of your tax return. In most cases there will be numerous changes in your income tax liability after your divorce and you should give consideration to what changes will take place because this could be a factor in determining the best divorce settlement for you. In some cases these changes may be complicated enough that your attorney should involve an accountant or certified financial planner to help analyze the different options. Our next five blog posts will explore the various issues raised by the interrelation of divorce and taxes so that you are at least aware of the issues to be on the lookout for.
Issue #1. MARITAL STATUS: The most obvious way that a divorce will affect your taxes is by changing your marital status. This is a change to your federal income tax return that will happen after every divorce case.
In Massachusetts, after the expiration of the Divorce Nisi waiting period (90 days from the issuance of the Judgment of Divorce Nisi) when the Judgment of Divorce becomes final you are officially divorced and you are no longer qualified to file a tax return as "married, filing jointly" or "married, filing separately". The key date for determining your tax year marital status is December 31. If your divorce nisi period crosses December 31, then you are technically still married in that tax year and must still file under a married status.
Obviously, marital status has a significant affect on your income tax liability and if you are scheduling an uncontested divorce hearing in the Fall you might want to consider whether it makes sense to schedule it early enough to change your status by December 31, or wait.
Click here to read Divorce & Taxes - Issue #2. Child Support v. Alimony.
Wednesday, March 28, 2012
Who Gets Hurt when You Play Telephone with Your Kids?
This is one of the reasons the Massachusetts Probate & Family Courts under Standing Order 99-1 require parents with minor children to attend the Court-sponsored Parents Apart education program. The Program discusses the impact of Divorce on children and tries to help parents understand how sending messages through children can be so damaging to children.
If you need more convincing read this Rant posted on Craigslist by a child of divorce (Warning: the rant contains strong language).
A brochure which lists the names, addresses and telephone numbers of the various organizations that provide the Parent Education program, in alphabetical order by town, is available by clicking here.
Tuesday, March 27, 2012
Custody Reform: H.2244 - Does Equal Time Make Equal Parents?
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
What is Nesting and Why Would I try It?
Nesting is when the children stay in the home and the parents move in and out according to a parenting schedule (rather than have the children travel back and forth to separate homes.
The main benefits of nesting are as follows:
1. Rather than create greater stress for the children by making them travel and sleep in a new place, while they are still getting used to the idea that their parents are separating, we force this stress on the parents. Although not ideal in either situation, the argument is that if either the children or the parents are going to be inconvenienced it makes more sense for that burden to fall on the parents (at least while it is practical). After all, the parents are the ones who decided to get divorced, not the children.
2. It allows for greater flexibility in designing a settlement of a case. By not forcing one spouse out, we haven’t made any irreversible decisions about living arrangements, which more realistically should be based on who can afford the home and not on who has the most reason to leave right now. It also avoids the pain and animosity that comes with a Motion to Vacate. In situations that rise to the level of needing a Restraining Order, the first consideration should be safety. But if the only issue leading to the Motion to Vacate is tension between the parties which is affecting the children, nesting can resolve that without having to brand one party the "bad" one.
3. If parents have available temporary housing for their non-parenting nights then nesting can be cheaper than immediately having to support two full-time households.
The downsides to nesting are:
1. Since it is not a permanent solution, spending too much time working out a nesting plan could be considered wasted cost. The simple fact that it is not a permanent solution could keep the parents from moving towards final resolution.
2. If parents don’t have available temporary housing then nesting could require three households instead of two, resulting in increased cost.
IF you agree to a nesting arrangement the key is still a parenting plan that makes sense for the children and their schedules and the parties' work schedules. But if you can reach a mutually agreeable parenting plan, nesting can be a useful tool in moving a case forward with less animosity and less stress on the children.
Monday, March 26, 2012
Can I Get a Divorce or Annulment if my Spouse has an STD?
In Massachusetts, the possible grounds for divorce are cruel and abusive treatment, utter desertion, adultery, intoxication, impotency, nonsupport, confinement to prison for 5 years or more, and irretrievable breakdown (i.e. the no-fault standard). The possible grounds for annulment are incest, polygamy, being underage, being insane, failure to properly complete the marriage, impotence, fraud, misrepresentation of chastity, misrepresentation of disease, and duress.
If one party conceals that they have a sexually transmitted disease then that could be considered a fraud and sufficient to annul the marriage. If the parties lived together or consummated the marriage after this knowledge was learned that action would likely remove the misrepresentation as a basis for annulment.
If you are not able to obtain an annulment, you would still be able to obtain a divorce. It is possible you could argue for divorce based on impotence, which is strictly defined as an inability to have sexual intercourse. The existence of an STD could be argued as impotence although not technically making intercourse impossible. As with any fault argument, you would bear the burden of proving this fault as a prerequisite to obtaining the divorce, which is one of the reasons we often counsel clients not to file fault divorce cases (as discussed in this previous post: Is No-Fault Divorce a Good Thing? It may soon be the law in all 50 states.).
It would be easier, therefore, to simply apply for divorce based on the no-fault standard in which you could claim an irretrievable breakdown without having to prove the existence or impact of the STD.
For more information about Annulments read our previous post specifically on that subject: Can I obtain an Annulment?
Sunday, March 25, 2012
I'm Separated, Why Should I get Divorced? - Reason #2: The Ticking Time Bomb
Today your spouse may be a healthy self-sufficient person. They may work and support themselves today. But what happens if they become disabled. Whether or not you are separated you have a legal obligation to help support your spouse and they can enforce that obligation through a Complaint for Separate Support or a Complaint for Divorce.
And if your spouse becomes disabled during your marriage (whether or not you are separated) you will likely be obligated to support them financially. Under Massachusetts law, spousal support, especially in the case of a disabled recipient can be for life.
Even if your spouse does not become disabled, if they are a candidate for spousal support (also known as alimony) the longer you are married, the longer alimony may last. Although duration of alimony is a hotly contested issue under the current law, there is a proposed alimony bill which would link duration directly (by formula) to the length of the marriage. It would be up to a Judge whether to consider your separation part of the marriage or not.
Read Reason #3: Becoming a Legal Parent
Como divorciar-se quando não falo inglês ?
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
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
Saturday, March 24, 2012
What can we learn from Katie Holmes divorce filing against Tom Cruise?
If you live in a cave, then maybe you haven't heard that TomKat is no more. As reported by TMZ, Katie Holmes has filed for divorce from Tom Cruise and according to the pleadings she is seeking sole legal and physical custody of their daughter Suri.What I find interesting is not the fact that another celebrity couple has called it quits. Celebrities getting divorced is hardly even surprising news anymore. Okay, it is a little interesting that this would be Tom's third divorce and, according to the Huffington Post, all three occurred when his wives turned 33.
But what I find most interesting is how the media has been reporting the divorce filings and what it says about how we perceive custody battles. Specifically the Huffington Post had the following headline on an article about the divorce filings: Suri Cruise Custody: Katie Holmes Reportedly Seeks Full Custody In Divorce From Tom Cruise
When I first read this I immediately cringed, because I am so often telling clients that the words "full custody" are meaningless. What is "full custody"? Is it sole legal and physical custody, or just sole physical custody? Does it mean Katie doesn't want Tom to ever see their daughter? Does it mean Katie thinks she is the only parent to Suri? Probably not, but that's what asking for "full custody" can sound like to the person who is being asked to give up custody of their child.
The word "custody" is a loaded term already, and the term "full custody" is even worse. The terms "legal custody" and "physical custody" have legal meaning but they don't actually tell you how to co-parent a child as separated parents. Parents who are separated or are separating should be considering what is in the best interest of their child. Except in very unusual circumstances (when a parent is destructive and dangerous), a child always benefits from having both parents involved in their life. In addition, in most cases both parents will feel strongly that they should stay involved in their child's life.
Telling the other parent that you want "full custody" is akin to saying "I'm a parent and you're not." Is that what Katie Holmes meant to do? Probably not, despite the way it was being reported by the media. In fact, the legal document for filing divorce requires that a request be made on custody. Many times the legal pleadings are restrictive on what you can ask for depending on how you plan to proceed with the case and this may have been the best way for Katie's attorneys to complete the form even if "full custody" was not their intent. Because Tom likely has a team of lawyers he probably already knew the difference between the legal document and the practical reality.
Unfortunately, though, many divorcing parents begin the divorce process with the misunderstanding that they should seek "full custody" or that their spouse is trying to do so. Imagine someone/anyone trying to take your child away from you and you can begin to understand the amount of hurt that causes parents. These parents are already hurting because of the loss of their marriage, and now add to that the perception that their spouse is trying to take away their children. That is a recipe for disaster, and it is not hard to figure out where the term "custody battle" comes from.
But it doesn't have to be that way.
There are two movements towards greater civility in the Divorce process which overlap in this instance: Collaborative Divorce, and Shared Parenting.
Collaborative Law is a form of alternative dispute resolution where both parties in a dispute have their own attorney, but those attorneys agree not to go to Court. The goal of the Collaborative process is to reach agreements through negotiation and to avoid the expensive and emotional experience of Court. In the context of family law, Collaborative Law can be used to resolve disputes involving divorce, child custody and support, alimony, division of assets, paternity, and actions for modification. The process can also include other professionals such as financial planners and mental health professionals using a team approach to help negotiate and settle disputes.
Shared Parenting doesn't necessarily mean "equal parenting" but rather a recognition that both parents will be involved (in most cases) in the child's life. The goal of speaking about parenting in these terms as opposed to adversarial terms is in recognizing the shared roles that parents have and the cooperation necessary to parent a child together even if from separate households. That relationship is defined through a parenting plan, that may still use the legal terms "custody" but is focused primarily on the relationship and only uses the legal terms to ensure understanding by the courts.
A Parenting Plan is a comprehensive agreement which sets out both the time that children will spend with each parent as well as the rights and obligations of each parent to the children and the other parent during their parenting time. It can include a holiday visitation schedule, pick-up and drop-off locations, and even agreements relating to what will happen if one of the children becomes ill. Parenting Plans can be made specific in instances where it is necessary to prevent future conflict, and they can be made flexible so that you and the other parent can make agreements outside of the parenting plan in unforeseen circumstances.
As we learn more and more about the destructive effect that custody battles have on the children, shared parenting and collaborative divorce will become more and more popular.
Even between Tom and Katie, despite the supposed request for "full custody" in the initial filing, they saw a way through the 'battle" to quickly reach an agreement and release a statement that they "are committed to working together as parents to accomplishing what is in our daughter Suri's best interests" (as reported by CNN). In a divorce, that's the only commitment that still matters.
Read more about Collaborative Divorce here.
Read more about Parenting Plans here or try out our Parenting Plan Worksheet.
Thursday, March 22, 2012
What Should I Expect at My Divorce Pre-Trial Conference?
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.
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.
Can I Sleep with my Wife or Husband during our Divorce?
This question was recently posted on Avvo.com and as a regular contributor I answered the question on that site. Since I have received a positive response to my answer I have decided to reprint it here:
Question: What are the rules about husband and wife sleeping together while they are getting a divorce? One of the pair doesn't want the divorce and is willing to work hard to turn things around. Right now there is no hope but I want there to be and am praying for a miracle. (spelling errors corrected)
Answer: There are no court rules or statutes that prevent a husband and wife from sleeping together before, during or after a divorce. In fact, the only law in Massachusetts preventing people from sleeping together is a prohibition on adultery which is not enforced anyway.
However, it could be extremely unhealthy for you to continue to sleep with your spouse if you are hopeful that it will result in a reconciliation but your spouse is adamant that it will not.
In Massachusetts, if only one person in the marriage believes that the marriage is over, then they may file a Complaint for Divorce under Section 1B. Under this no-fault statute if that person is willing to state under oath that they believe the marriage is irretrievably broken down with no chance of reconciliation, then the Judge will grant the divorce and the other party is helpless to stop it once the person's mind is made up.
If there is any chance of saving your marriage, it is most likely to come from marriage counseling and not from "sleeping together". You may also want to consider marital mediation. For more information about reconciliation visit our previous post as well.
Question: What are the rules about husband and wife sleeping together while they are getting a divorce? One of the pair doesn't want the divorce and is willing to work hard to turn things around. Right now there is no hope but I want there to be and am praying for a miracle. (spelling errors corrected)
Answer: There are no court rules or statutes that prevent a husband and wife from sleeping together before, during or after a divorce. In fact, the only law in Massachusetts preventing people from sleeping together is a prohibition on adultery which is not enforced anyway.
However, it could be extremely unhealthy for you to continue to sleep with your spouse if you are hopeful that it will result in a reconciliation but your spouse is adamant that it will not.
In Massachusetts, if only one person in the marriage believes that the marriage is over, then they may file a Complaint for Divorce under Section 1B. Under this no-fault statute if that person is willing to state under oath that they believe the marriage is irretrievably broken down with no chance of reconciliation, then the Judge will grant the divorce and the other party is helpless to stop it once the person's mind is made up.
If there is any chance of saving your marriage, it is most likely to come from marriage counseling and not from "sleeping together". You may also want to consider marital mediation. For more information about reconciliation visit our previous post as well.
Signs of a Cheating Spouse Infographic
In the wake of Valentine's Day perhaps you're wondering if you're the only one that your significant other bought a gift for. To help you answer that question a network of Private Investigators has put together an Infographic based on a survey of their members. Please don't take it too seriously:
Courtesy of: PInow.com
Kelsey & Trask, P.C. provides this graphic for informational purposes only. We do not endorse nor claim endorsement from the source site or organization. Kelsey & Trask, P.C. is not responsible for any information contained therein, unless indicated specifically on that site.
Courtesy of: PInow.com
Kelsey & Trask, P.C. provides this graphic for informational purposes only. We do not endorse nor claim endorsement from the source site or organization. Kelsey & Trask, P.C. is not responsible for any information contained therein, unless indicated specifically on that site.
Wednesday, March 21, 2012
The Cleavers Divorce: Collaborative Law, Mediation or Litigation - Part I
The votes are cast - The Cleavers and Mediation:
Ward is a businessman and June is a stay-at-home mom. They have two children Wally and Beaver. Ward handles all of the finances and June handles most of the home care including parenting, although once in a while Ward is needed to help discipline the children (in a very stern but fair kind of way).
Ward and June agree that the spark and color had left their marriage long ago and that they were only staying together for the children. They have agreed that a divorce would be best and have already sat down to a family meeting with Wally and the Beaver and explained that although Mom and Dad are getting a divorce, they will still both be involved regularly in the children's lives, that it is not the children's fault and that they both love the children very much.
Ward, eager to move forward with the divorce quickly and as cheaply as possible, suggests that they attend mediation and provides June with the name of a mediator he has found. Agreeing with the logic of using a mediator, June agrees and they attend their first mediation meeting.
At the first meeting, the Mediator explains how mediation works, telling Ward and June that the mediator does not represent either of them, and that their job is only to help Ward and June reach an agreement, not to steer them in any particular direction. The mediator explains that they will both have to provide a Financial Statement and that they should begin thinking about what they each want for a custody and visitation plan, and for the division of assets and liabilities.
After the meeting Ward informs June that he wants joint custody and that he will help her do her Financial Statement since he has all of the financial information. He also wants to sell the house and he asks her to agree to this immediately so they can list the house for sale as soon as possible.
June is worried that she doesn't know enough about their finances to know whether the house has to be sold. She also realizes that she doesn't really know what joint or sole custody means. June talks to her friends who all suggest that she meet with an attorney. After meeting with a few attorneys, June realizes she needs help and hires an attorney. Upon realizing that June has hired an attorney, Ward feels like June was trying to get an advantage behind his back and hires an attorney as well. They end up proceeding through litigation, because June's attorney insists on filing the Complaint for Divorce to protect the assets with the Automatic Stay and to provide for mandatory discovery. Eventually they settle their case at Pre-Trial.
COULD THIS HAVE GONE BETTER: Because of June's lack of knowledge about the finances it was likely that she would feel uncomfortable at some point in the mediation, even if Ward hadn't pushed her at the beginning to be more ready to make decisions. Her lack of information was going to make it difficult for her to make decisions. This could have been resolved by June being more aggressive, but if this has not been the pattern in the marriage it was unlikely to change now. For these reasons June needed an adviser/advocate, i.e. her own lawyer.
If the parties had communicated their intentions better, it is possible June and Ward would still have been able to use mediation, and just have their lawyers advise them individually as to the Agreement and disclosure of financial information.
This was likely a more ideal case for Collaborative Law, because of June's need for a representative. In Collaborative Law both parties and lawyers agree to commit to working towards a settlement and to not file litigation. In a true Collaborative Law agreement, the lawyers also agree that if the case goes to litigation that they will not represent the parties, i.e. both lawyers are thus committed to the settlement path as well. Although there's the danger of having to pay two lawyers each, the advantage is the great potential for a less acrimonious process.
Because both Ward and June committed to settlement, but just had an imbalance of power/knowledge, they would have been best served by Collaborative Law.
There's still time to vote for what the Huxtables and Kramdens should do: leave a comment here.
Ward is a businessman and June is a stay-at-home mom. They have two children Wally and Beaver. Ward handles all of the finances and June handles most of the home care including parenting, although once in a while Ward is needed to help discipline the children (in a very stern but fair kind of way).
Ward and June agree that the spark and color had left their marriage long ago and that they were only staying together for the children. They have agreed that a divorce would be best and have already sat down to a family meeting with Wally and the Beaver and explained that although Mom and Dad are getting a divorce, they will still both be involved regularly in the children's lives, that it is not the children's fault and that they both love the children very much.
Ward, eager to move forward with the divorce quickly and as cheaply as possible, suggests that they attend mediation and provides June with the name of a mediator he has found. Agreeing with the logic of using a mediator, June agrees and they attend their first mediation meeting.
At the first meeting, the Mediator explains how mediation works, telling Ward and June that the mediator does not represent either of them, and that their job is only to help Ward and June reach an agreement, not to steer them in any particular direction. The mediator explains that they will both have to provide a Financial Statement and that they should begin thinking about what they each want for a custody and visitation plan, and for the division of assets and liabilities.
After the meeting Ward informs June that he wants joint custody and that he will help her do her Financial Statement since he has all of the financial information. He also wants to sell the house and he asks her to agree to this immediately so they can list the house for sale as soon as possible.
June is worried that she doesn't know enough about their finances to know whether the house has to be sold. She also realizes that she doesn't really know what joint or sole custody means. June talks to her friends who all suggest that she meet with an attorney. After meeting with a few attorneys, June realizes she needs help and hires an attorney. Upon realizing that June has hired an attorney, Ward feels like June was trying to get an advantage behind his back and hires an attorney as well. They end up proceeding through litigation, because June's attorney insists on filing the Complaint for Divorce to protect the assets with the Automatic Stay and to provide for mandatory discovery. Eventually they settle their case at Pre-Trial.
COULD THIS HAVE GONE BETTER: Because of June's lack of knowledge about the finances it was likely that she would feel uncomfortable at some point in the mediation, even if Ward hadn't pushed her at the beginning to be more ready to make decisions. Her lack of information was going to make it difficult for her to make decisions. This could have been resolved by June being more aggressive, but if this has not been the pattern in the marriage it was unlikely to change now. For these reasons June needed an adviser/advocate, i.e. her own lawyer.
If the parties had communicated their intentions better, it is possible June and Ward would still have been able to use mediation, and just have their lawyers advise them individually as to the Agreement and disclosure of financial information.
This was likely a more ideal case for Collaborative Law, because of June's need for a representative. In Collaborative Law both parties and lawyers agree to commit to working towards a settlement and to not file litigation. In a true Collaborative Law agreement, the lawyers also agree that if the case goes to litigation that they will not represent the parties, i.e. both lawyers are thus committed to the settlement path as well. Although there's the danger of having to pay two lawyers each, the advantage is the great potential for a less acrimonious process.
Because both Ward and June committed to settlement, but just had an imbalance of power/knowledge, they would have been best served by Collaborative Law.
There's still time to vote for what the Huxtables and Kramdens should do: leave a comment here.
Tuesday, March 20, 2012
Custody Reform: Six More Proposals Varying in Practical Effect
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:
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
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
Monday, March 19, 2012
Divorce and Renewal Spa BootCamp Weekend for Women
Below you will find information on a spa weekend for divorcing women, organized by Family Law Attorney Paula H. Noe, and Psychotherapist and Divorce Coach Betsy Ross. It sounds interesting but it leaves me wondering if I can successfully convince my wife that I need to organize a Golf Weekend for Divorcing Men.
Even if that never happens, there certainly is some value to finding alternative ways to help both men and women find healthy ways to deal with the stress of divorce and learn how best to manage that stress in the future. To that end here is the invitation forwarded by Betsy Ross for their program:
Norwich Inn and Spa
Norwich, CT
See DivorceAndRenewal.com
The weekend will provide an opportunity for women who are
or
STRUGGLING THROUGH DIVORCE
or
THINKING ABOUT DIVORCE
to spend a weekend of renewing themselves, jumpstarting the rest of their lives and creating a community. We have brought a team of highly skilled divorce professionals to help us teach skill and tactics in 2 days of stimulating and creative workshops.
Paula and I will be co-teaching and co-facilitating many of these workhops, including:
- "Communication Tools and Tips: How to Get What You Want With Words!"
- "How to Talk Divorce with Your Children, Your Attorney, Your Community"
- "Artful and Successful Negotiation: Can I Win It?"
- "Anger-Weapon or Tool: How can I use it?"
- "Preserving my family" (includes: "Who gets to keep our friends?")
- "Stress and String Beans: Time Management and Organizational Skills"
- "How do I re-launch and re-enter: personal marketing and relationship skills" (includes "Common Obstacles to Close Relationships")
and even -
- "Online Dating: How do I?", (includes: "The Art of Finding Someone New")
- "Allowing Happiness"
and we are lucky enough to have put together a panel of divorce professionals who will speak on our lunch panel and then participate in in-depth workshops:
- "Financial Tips and Traps for the Unmarried Woman", facilitated by Susan Miller of Aurora Financial, Wellesley, MA.
- "Increasing Your Parenting IQ: Co-parenting before, during and after divorce", facilitated by Judith Farris Bowman, Esquire, of Bowman, Moos and Elder, Cambridge, MA.
- "War Stories From the Bench: A Divorce Judge's View of Good and Bad", facilitated by Chouteau Merrill Levine, Retired Probate and Family Court Judge, Suffolk County, MA, currently of Levine Dispute Resolution of Westwood and Northhampton, MA.
So please help us get our message out - do you know anyone who would benefit?
Click here to see the brochure - Divorce_and_Renewal_Better_Q.pdf
Sunday, March 18, 2012
What happens after my Divorce Agreement is approved by a Judge?
If you filed a Complaint for Divorce then your case will end either with a trial (if you don't settle) or an uncontested divorce hearing (if you settle). If you reach an Agreement, then a Judgment of Divorce Nisi will issue and be effective as of the date of the uncontested divorce hearing, and it will become Absolute after a further ninety (90) days. This means that if you file a Complaint for Divorce you are not legally and officially divorced until 90 days after the divorce hearing date.
Therefore, for 90 - 120 days after your agreement is approved you are still officially married. During that "nisi" period you cannot remarry, and your tax and health insurance status will be as if you are married. Once the "nisi" period passes you are officially divorced.
During and after the "nisi" period your Agreement will remain in effect unless the Judge or the Agreement directs otherwise. This means that usually immediately after your hearing you start acting as required by the Agreement. If you owned any joint property, the Agreement will likely require you to complete certain paperwork during this time period, such as transferring car titles, or signing deeds. In addition, if you agreed to the transfer of any retirement account you should complete any necessary QDROs as soon as possible and present them to the court for approval and then the retirement account plan administrators for implementation.
Once these transfers are complete there usually isn't any further work for your attorneys, but there may still be some to-dos for you to successfully complete your divorce. You should review your Separation Agreement to ensure that you are currently in compliance with and continue to comply with all of your obligations.
To assist you in completing these processes we have provided you with a Closing Checklist below:
☐ Pay final bill for professional services & fees to your attorney.
☐ Retrieve original files from your attorney.
☐ Store file in secure, safe location.
☐ Update Post Office with any new information (change of address or name).
☐ Update Registry of Motor Vehicles with any new information (change of address or name), and file updated titles for any motor vehicle transfers required by Separation Agreement.
☐ Close any joint accounts as required by Separation Agreement.
☐ Notify your accountant and/or financial planner of any account changes due to your divorce, and the change in your marital status.
☐ Notify your employer human resources department of change in marital status as of the Judgment of Divorce absolute date.
☐ Except as required by Separation Agreement, update beneficiary designations and authorized users on any accounts (bank, retirement, life insurance, etc.).
☐ Schedule Consult for updating Estate Plan (previous estate plan likely voided by divorce).
☐ Update all online account passwords (bank, credit card, loan, e-mail, social networking, etc.).
☐ If Property Transfer: File Quitclaim Deed with proper Registry, and obtain time-stamped copy for evidence of recording.
☐ If Name Change: Obtain Certified Copy of Judgment of Divorce Absolute (after 90 days) directly from Court.
☐ If Name Change: Provide Certified Divorce Judgment to Social Security Administration with Form SS-5 .
Other Resources:
Modification - In the event of a change in circumstances you may be entitled to a Modification of your Agreement, for more information visit: www.criticalmassdivorce.com/modification
Contempt – If the other party fails to meet an obligation required by the Agreement you may be entitled to Contempt sanctions, for more info visit: www.criticalmassdivorce.com/contempt
Saturday, March 17, 2012
Justice from the Fashion Police
The ABA Journal recently published a piece on their website concerning the appropriate dress code in court. While the "Casual Friday" phenomenon has spread through many offices over the past twenty years, courthouses have remained stubbornly formal. The article cites instances where judges have had individuals removed from the courtroom and even threatened jail time for clothing deemed inappropriate for court.
As a general rule of thumb, you can not overdress for court. While a judge will not give anyone favorable treatment for dressing up, some judges may become annoyed with someone wearing a tee shirt, ripped jeans and flip flops.
Along similar lines, many of our courthouses in Massachusetts are older buildings with some hot rooms and some cold rooms. The take-away point: dress up, and wear layers.
As a general rule of thumb, you can not overdress for court. While a judge will not give anyone favorable treatment for dressing up, some judges may become annoyed with someone wearing a tee shirt, ripped jeans and flip flops.
Along similar lines, many of our courthouses in Massachusetts are older buildings with some hot rooms and some cold rooms. The take-away point: dress up, and wear layers.
Friday, March 16, 2012
Thursday, March 15, 2012
Retirement Does Not Stop Alimony - The Pierce Decision
UPDATE: There is pending legislation for major changes to the alimony statute in Massachusetts. The Alimony Reform Act of 2011 was filed on January 18, 2011 and you can learn more about the Act at MassAlimonyFormula.com or in our recent blog post highlighting the differences between the bill and the current law.
A much awaited decision from the Massachusetts Supreme Judicial Court was published today: Pierce v. Pierce, SJC - 10381, Nov. 9, 2009. In this case, the Husband had agreed to an alimony order of $110,000 per year after a 32 year marriage, and had voluntarily retired at age 65. Upon retirement, the Husband filed a Complaint for Modification seeking the elimination of his alimony. The trial Judge reduced the alimony to $42,000 per year but declined to terminate alimony.
The Pierce appeal centered around the Husband's claim that there should be a presumption that alimony ends upon retirement. Without that presumption, the Husband argues, the person receiving alimony has the right to essentially "veto" the retirement choice.
The Court rejected this argument, stating that the Judge's decision was within her discretion, and that retirement is only one of the factors in deciding what an alimony order should be. In answering the Husband's argument that this creates a "veto", the court dances around the issue by stating that the alimony judgment "eventually will need to be reduced," but that "the supporting spouse, even after reaching a customary retirement age, in the sound discretion of the probate judge, may be expected temporarily to postpone retirement or to find part-time work to help the recipient spouse weather difficult financial circumstances.
Without saying it outright, the Court is endorsing the idea, that to some extent, when it comes to alimony the law treats the two parties as if they're still married. One spouse in a marriage doesn't have a veto over the other's decision to retire, but it is certainly something that would be discussed before a unilateral decision was made, especially if the other person is currently out of work. This is consistent with the Court's treatment of a long-term marriage forever linking two people's financial circumstances. We're not saying it's fair, just that it's consistent with the current case law, and that any changes are going to have to come from the legislature.
As an interesting side note, in it's discussion the Court reiterates the case law stating "In conducting this multifactor analysis, whether in fashioning the original alimony judgment or in modifying that judgment, the judge must weigh all the statutory factors in light of the facts of the particular case; no single factor is determinative. "
This quote could apply in a much broader sense than just to the factors in this case. For instance, many Judges have noted recently that they favor using a formula (such as the MBA-BBA Joint Tax Force Formula, explained further in the Stevenson-Kelsey Spousal Support Calculator article) . The Court's language regarding considering all factors, would appear to indicate that formulas are not allowed.
As a practice tip, this suggests that whether you are arguing the use of an alimony formula or arguing for the end of alimony upon retirement, you should always provide the underlying arguments on all of the statutory factors as well.
A much awaited decision from the Massachusetts Supreme Judicial Court was published today: Pierce v. Pierce, SJC - 10381, Nov. 9, 2009. In this case, the Husband had agreed to an alimony order of $110,000 per year after a 32 year marriage, and had voluntarily retired at age 65. Upon retirement, the Husband filed a Complaint for Modification seeking the elimination of his alimony. The trial Judge reduced the alimony to $42,000 per year but declined to terminate alimony.
The Pierce appeal centered around the Husband's claim that there should be a presumption that alimony ends upon retirement. Without that presumption, the Husband argues, the person receiving alimony has the right to essentially "veto" the retirement choice.
The Court rejected this argument, stating that the Judge's decision was within her discretion, and that retirement is only one of the factors in deciding what an alimony order should be. In answering the Husband's argument that this creates a "veto", the court dances around the issue by stating that the alimony judgment "eventually will need to be reduced," but that "the supporting spouse, even after reaching a customary retirement age, in the sound discretion of the probate judge, may be expected temporarily to postpone retirement or to find part-time work to help the recipient spouse weather difficult financial circumstances.
Without saying it outright, the Court is endorsing the idea, that to some extent, when it comes to alimony the law treats the two parties as if they're still married. One spouse in a marriage doesn't have a veto over the other's decision to retire, but it is certainly something that would be discussed before a unilateral decision was made, especially if the other person is currently out of work. This is consistent with the Court's treatment of a long-term marriage forever linking two people's financial circumstances. We're not saying it's fair, just that it's consistent with the current case law, and that any changes are going to have to come from the legislature.
As an interesting side note, in it's discussion the Court reiterates the case law stating "In conducting this multifactor analysis, whether in fashioning the original alimony judgment or in modifying that judgment, the judge must weigh all the statutory factors in light of the facts of the particular case; no single factor is determinative. "
This quote could apply in a much broader sense than just to the factors in this case. For instance, many Judges have noted recently that they favor using a formula (such as the MBA-BBA Joint Tax Force Formula, explained further in the Stevenson-Kelsey Spousal Support Calculator article) . The Court's language regarding considering all factors, would appear to indicate that formulas are not allowed.
As a practice tip, this suggests that whether you are arguing the use of an alimony formula or arguing for the end of alimony upon retirement, you should always provide the underlying arguments on all of the statutory factors as well.
Tuesday, March 13, 2012
The Sanctity of Marraige
A recent tongue-in-cheek blog post by fellow attorney and blawger, Gabriel Cheong, describes his support for the 2010 California Marriage Protection Act.
The 2010 California Marriage Protection Act, a proposed amendment available at http://rescuemarriage.org/2009/08/22/2010-california-protection-of-marriage-act/, takes Proposition 8 one step further by banning divorce in the state of California.
Support of the 2010 California Marriage Protection Act demonstrates the hypocrisy of attacking gay marriage for being detrimental to the sanctity of marriage when the state allows divorce. Divorce, after all, is the ultimate attack on the sanctity of marriage.
Although this is the classic slippery slope argument, the method can hardly be questioned by those who claim gay marriage will lead to people wanting to marry their pets.
This leads to the question: What does it really mean to protect the sanctity of marriage?
Sanctity is defined by the Merriam Webster Dictionary as 1. the holiness of life and character, or 2. the quality or state of being holy or sacred.
So when you hear pundits, politicians and protesters telling you that the sanctity of marriage is being attacked in the United States, they are right. But it isn't under attack because homosexual couples want to get married. The sanctity of marriage has been under attack since the first time one spouse cheated on their spouse, lied to their spouse, or otherwise disrespected the bonds of marriage.
The fight to keep marriage sacred is not a fight that can be won by the writing of laws, or restricting certain people from enjoying that bond. The fight to keep marriage sacred is an ever vigilant effort by a spouse to support, love and respect their spouse, and it takes two spouses willing to make that effort.
Forcing people to stay in marriages where their spouse is unwilling to make that effort is just as silly as refusing to recognize that homosexuals also have the ability to participate in a sacred bond of support, love and respect with their partners (whether or not the laws support them).
The 2010 California Marriage Protection Act, a proposed amendment available at http://rescuemarriage.org/2009/08/22/2010-california-protection-of-marriage-act/, takes Proposition 8 one step further by banning divorce in the state of California.
Support of the 2010 California Marriage Protection Act demonstrates the hypocrisy of attacking gay marriage for being detrimental to the sanctity of marriage when the state allows divorce. Divorce, after all, is the ultimate attack on the sanctity of marriage.
Although this is the classic slippery slope argument, the method can hardly be questioned by those who claim gay marriage will lead to people wanting to marry their pets.
This leads to the question: What does it really mean to protect the sanctity of marriage?
Sanctity is defined by the Merriam Webster Dictionary as 1. the holiness of life and character, or 2. the quality or state of being holy or sacred.
So when you hear pundits, politicians and protesters telling you that the sanctity of marriage is being attacked in the United States, they are right. But it isn't under attack because homosexual couples want to get married. The sanctity of marriage has been under attack since the first time one spouse cheated on their spouse, lied to their spouse, or otherwise disrespected the bonds of marriage.
The fight to keep marriage sacred is not a fight that can be won by the writing of laws, or restricting certain people from enjoying that bond. The fight to keep marriage sacred is an ever vigilant effort by a spouse to support, love and respect their spouse, and it takes two spouses willing to make that effort.
Forcing people to stay in marriages where their spouse is unwilling to make that effort is just as silly as refusing to recognize that homosexuals also have the ability to participate in a sacred bond of support, love and respect with their partners (whether or not the laws support them).
Monday, March 12, 2012
Combating Domestic Violence in the Workplace
We often forget that the President is not just a political, foreign and domestic leader, but that he is also the C.E.O. of the federal executive branch, which, including the armed forces, employs more than 4 million american citizens. Therefore, the policies of the president's administration on issues such as domestic violence affect a large percentage of the american workforce.
Specifically, the memo requires OPM to issue guidance on policies
"to prevent domestic violence and address its effects on the Federal workforce. The guidance shall include recommended steps agencies can take as employers for early intervention in and prevention of domestic violence committed against or by employees, guidelines for assisting employee victims, leave policies relating to domestic violence situations, general guidelines on when it may be appropriate to take disciplinary action against employees who commit or threaten acts of domestic violence, measures to improve workplace safety related to domestic violence, and resources for identifying relevant best practices related to domestic violence;"
While it remains to be seen how this will be implemented (especially in an election year), the goal of addressing all of these issues with directed policies is commendable, and should be a model for all employers. Not only will having policies in place to address domestic violence help your staff know what to do in these situations, addressing the issues will result in a safer and more productive work-force.
If you want to learn more about the resources available to help domestic violence victims in Massachusetts check out these resources available on the Massachusetts State website, and seek help. If you or someone you know suffers from Sexual or Domestic Violence, call the National Domestic Violence Hotline at 1-800-799-SAFE for immediate assistance.
For more information about Abuse Protection Orders in Massachusetts, visit our Restraining Order webpage.
Why You Should Try to Avoid Divorce Court?
Although sometimes necessary, appearing in Court is often a lengthy, expensive, and disappointing trial (pun intended). Any combination of failed preparation, miscommunication between client and attorney, or incomplete discovery can cause the process to result in imperfect and incomplete Orders. Sometimes just the limitations of the court process (such as the limited time of the Judge to hear each case) can result in frustrating court appearances.
In order to avoid unnecessary costs, you may want to consider alternatives to litigation such as Mediation or Collaborative Law. For more information about those processes read our past posts:
What are the Advantages & Disadvantages of Mediation
Dramatic Impact of Mediation on Children of Divorce
Mediation, Collaborative Law or Litigation: What's your Vote? - A 3 Part Post:
The Cleavers Divorce: Collaborative Law, Mediation or Litigation - Part I
The Huxtable's Divorce: Collaborative Law, Mediation or Litigation - Part II
The Honeymooners' Divorce: Collaborative Law, Mediation or Litigation - Part III
Even if mediation or collaborative law is not available in your case (these processes both require joint and volunteer participation), it is still possible to reach agreements with the proper preparation and forethought. Make sure that you provide your attorney with all of the information necessary for them to properly and timely prepare your case, and they should be able to make appropriate and timely proposals for settlement that could help you avoid costly and disappointing court appearances.
In order to avoid unnecessary costs, you may want to consider alternatives to litigation such as Mediation or Collaborative Law. For more information about those processes read our past posts:
What are the Advantages & Disadvantages of Mediation
Dramatic Impact of Mediation on Children of Divorce
Mediation, Collaborative Law or Litigation: What's your Vote? - A 3 Part Post:
The Cleavers Divorce: Collaborative Law, Mediation or Litigation - Part I
The Huxtable's Divorce: Collaborative Law, Mediation or Litigation - Part II
The Honeymooners' Divorce: Collaborative Law, Mediation or Litigation - Part III
Even if mediation or collaborative law is not available in your case (these processes both require joint and volunteer participation), it is still possible to reach agreements with the proper preparation and forethought. Make sure that you provide your attorney with all of the information necessary for them to properly and timely prepare your case, and they should be able to make appropriate and timely proposals for settlement that could help you avoid costly and disappointing court appearances.
Sunday, March 11, 2012
Mediation, Collaborative Law or Litigation: What's your Vote?
One of the first things I explain to clients in our free one hour initial divorce consultation is that there are three types of professionals in Massachusetts who can help clients resolve their divorce case: Mediators, Lawyers trained in Collaborative Law, and traditional Litigators. Each of these methods has strengths and weaknesses, and they can be demonstrated by showing you how some well known couples might have experienced these various options:
Couple #1 - The Cleavers. Ward is a businessman and June is a stay-at-home mom. They have two children Wally and Beaver. Ward handles all of the finances and June handles most of the home care including parenting, although once in a while Ward is needed to help discipline the children (in a very stern but fair kind of way).
Couple #2 - The Huxtables. Cliff is a doctor and Claire is a lawyer. They have five children. They both share in parenting and managing the finances. Cliff's office is located in the home.
Couple #3 - The Honeymooners/The Kramdens. Ralph is a bus driver and Alice is currently unemployed but has worked as secretary at times when Ralph has been laid off. They have no children and Alice is primarily responsible for the management of the finances. Ralph often gets involved in ridiculous schemes that Alice claims have wasted their money. Ralph and Alice often insult each other, and Ralph makes constant threats such as "One of these days... Pow! Right in the kisser! One of these days Alice, straight to the moon!."
Please Vote for whether each couple should use mediation, collaborative law or litigation, by leaving your Comments below.
P.S. Thanks to DGVElaw for giving us the idea for this post with her estate planning couple.
Couple #1 - The Cleavers. Ward is a businessman and June is a stay-at-home mom. They have two children Wally and Beaver. Ward handles all of the finances and June handles most of the home care including parenting, although once in a while Ward is needed to help discipline the children (in a very stern but fair kind of way).
Couple #2 - The Huxtables. Cliff is a doctor and Claire is a lawyer. They have five children. They both share in parenting and managing the finances. Cliff's office is located in the home.
Couple #3 - The Honeymooners/The Kramdens. Ralph is a bus driver and Alice is currently unemployed but has worked as secretary at times when Ralph has been laid off. They have no children and Alice is primarily responsible for the management of the finances. Ralph often gets involved in ridiculous schemes that Alice claims have wasted their money. Ralph and Alice often insult each other, and Ralph makes constant threats such as "One of these days... Pow! Right in the kisser! One of these days Alice, straight to the moon!."
Please Vote for whether each couple should use mediation, collaborative law or litigation, by leaving your Comments below.
P.S. Thanks to DGVElaw for giving us the idea for this post with her estate planning couple.
Saturday, March 10, 2012
Alimony Reform Update: Bill to be Filed in Early January
UPDATE: There is pending legislation for major changes to the alimony statute in Massachusetts. The Alimony Reform Act of 2011 was filed on January 18, 2011 and you can learn more about the Act at MassAlimonyFormula.com or in our recent blog post highlighting the differences between the bill and the current law.
Fox25 News and Steve Hitner of Mass Alimony Reform are reporting that the Legislative Task Force on Alimony has reached agreement on a final draft for an Alimony Reform Bill of 2010. The Bill will likely be filed in the next few weeks and may then be subject to further changes in legislative committee. Once the bill is available, we will be posting our thoughts and comments.
MA Alimony Laws: Close to Reform?: MyFoxBOSTON.com
For more information see our previous posts on this subject:
Alimony Reform: Stay Tuned! - December 3, 2010
It's a Trap! The Massachusetts Alimony Debate - February 13, 2010
Fox25 News and Steve Hitner of Mass Alimony Reform are reporting that the Legislative Task Force on Alimony has reached agreement on a final draft for an Alimony Reform Bill of 2010. The Bill will likely be filed in the next few weeks and may then be subject to further changes in legislative committee. Once the bill is available, we will be posting our thoughts and comments.
MA Alimony Laws: Close to Reform?: MyFoxBOSTON.com
For more information see our previous posts on this subject:
Alimony Reform: Stay Tuned! - December 3, 2010
It's a Trap! The Massachusetts Alimony Debate - February 13, 2010
Thursday, March 8, 2012
Alimony Reform Act approved Unanimously by the House
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
To read more about the act visit MassAlimonyFormula.com
What if I can't take the Parent Education Course? Is there an alternative option?
Under Standing Order 99-1 of the Probate & Family Court, if you have any minor children at the time of the filing of your divorce case, you are required to attend the Court-sponsored Parents Apart education program before you can present either a settlement of your case, or present your case for trial. A brochure which lists the names, addresses and telephone numbers of the various organizations that provide this program, in alphabetical order by town, is available by clicking here.
You should immediately enroll in and attend this course because your case cannot end until you have completed the course, which consists of two 3 hour sessions. After completion of the program you will be provided with a golden Certificate of Completion, which you must provide to the Court. If you give this golden copy to your attorney, they can ensure that it is properly filed with the Court and this requirement fulfilled.
But, what if you can't attend?
I have worked on numerous cases where one of the parties had moved to another country or state and was unable to return to Massachusetts to take the course, usually due to financial constraints. In those limited circumstances, Judge's will sometimes allow a Motion to Waive Attendance.
Pursuant to a recent Press Release from the Chief Justice of the Probate and Family Court Department, dated April 12, 2010, the court may suggest use of a DVD as a replacement for participation in the program (as a an alternative to a complete waiver).
According to the Press Release: "On a limited basis, use of a DVD program entitled KidCare for Co-Parents: An Educational Program for Divorcing Families is now available when a judge is considering a waiver.
KidCare for Co-Parents is a four and a half hour multimedia, interactive program which can be used with a DVD player on either a personal computer or a television screen. Completion of the interactive aspects of the DVD is required in order to obtain the Certificate of Attendance which must then be provided to the Court."
You should immediately enroll in and attend this course because your case cannot end until you have completed the course, which consists of two 3 hour sessions. After completion of the program you will be provided with a golden Certificate of Completion, which you must provide to the Court. If you give this golden copy to your attorney, they can ensure that it is properly filed with the Court and this requirement fulfilled.
But, what if you can't attend?
I have worked on numerous cases where one of the parties had moved to another country or state and was unable to return to Massachusetts to take the course, usually due to financial constraints. In those limited circumstances, Judge's will sometimes allow a Motion to Waive Attendance.
Pursuant to a recent Press Release from the Chief Justice of the Probate and Family Court Department, dated April 12, 2010, the court may suggest use of a DVD as a replacement for participation in the program (as a an alternative to a complete waiver).
According to the Press Release: "On a limited basis, use of a DVD program entitled KidCare for Co-Parents: An Educational Program for Divorcing Families is now available when a judge is considering a waiver.
KidCare for Co-Parents is a four and a half hour multimedia, interactive program which can be used with a DVD player on either a personal computer or a television screen. Completion of the interactive aspects of the DVD is required in order to obtain the Certificate of Attendance which must then be provided to the Court."
5 Worst Divorce Mistakes - MISTAKE #1 "My kids have a right to know what's happening."
MISTAKE #1: INVOLVING YOUR CHILDREN IN YOUR DIVORCE
While listening to 107.9 (Matty in the Morning) last week I heard a caller who described herself as a 17 year old girl. This girl when asked where she was, stated that she was at court with her Mother for a Contempt hearing against her Father for non-payment of child support. The girl thought it was funny, which is a perfect example of how a 17 year old child is still not mature enough to understand how inappropriate and damaging it can be to involve your children (no matter their age) in any of your divorce disputes.
The mistakes parents make involving their children in a divorce case range from a simple slip of an angry snide comment about the ex, to a revealing argument meant to win over your child because you think they're old enough to understand, to purposeful comments meant to alienate the child from the other parent.
In any of these cases the damage to the child is significant. A simple comment releasing a parent's frustration can put a child in the middle of an argument that they truly can't understand. Children, naturally inclined to want to please their parents, will often agree with both parents, only increasing their discomfort when parent's discuss the "preferences" of their children.
The bottom line is children (even for the most part adult children) want to love both their parents and should be given that opportunity. Even if one parent starts an argument through a child, responding only does more damage. Quite often the instinct to respond and defend oneself is the wrong choice because it only perpetuates keeping the child in the middle of the argument.
The best strategy for dealing with children during a divorce case is to provide them with as much stability as possible and to remember that they still want and deserve the chance to bond with both parents. According to Planning for Shared Parenting: A Guide for Parents Living Apart, children benefit when parents:
• Communicate with each other in a courteous “businesslike” manner.
• Are on time and have children ready at exchange time.
• Avoid any communication that may lead to conflict at exchange time.
• Encourage the children to carry “important” items such as clothing, toys and
security blankets with them between the parents’ homes.
• Follow reasonably similar routines for mealtime, bedtime and homework time.
• Communicate about rules and discipline in order to handle them in similar ways.
• Support contact with grandparents and other extended family so the children do
not experience a sense of loss.
• Are flexible in developing parenting plans to accommodate their child’s
extracurricular activities and special family celebrations.
• Make time to spend alone with their children when the parent has a new partner.
• Are with their children during scheduled times and communicate with their
children when they cannot be with them.
• Respect the other parent’s scheduled times with children and do not schedule
plans that will conflict.
• Discuss any proposed schedule changes directly with the other parent.
• Support the child’s relationship with the other parent and trust the other’s
parenting skills.
• Assure the children that they did not cause the divorce and that they do not have
the power to reverse the process.
Click here to view Mistake #5.
While listening to 107.9 (Matty in the Morning) last week I heard a caller who described herself as a 17 year old girl. This girl when asked where she was, stated that she was at court with her Mother for a Contempt hearing against her Father for non-payment of child support. The girl thought it was funny, which is a perfect example of how a 17 year old child is still not mature enough to understand how inappropriate and damaging it can be to involve your children (no matter their age) in any of your divorce disputes.
The mistakes parents make involving their children in a divorce case range from a simple slip of an angry snide comment about the ex, to a revealing argument meant to win over your child because you think they're old enough to understand, to purposeful comments meant to alienate the child from the other parent.
In any of these cases the damage to the child is significant. A simple comment releasing a parent's frustration can put a child in the middle of an argument that they truly can't understand. Children, naturally inclined to want to please their parents, will often agree with both parents, only increasing their discomfort when parent's discuss the "preferences" of their children.
The bottom line is children (even for the most part adult children) want to love both their parents and should be given that opportunity. Even if one parent starts an argument through a child, responding only does more damage. Quite often the instinct to respond and defend oneself is the wrong choice because it only perpetuates keeping the child in the middle of the argument.
The best strategy for dealing with children during a divorce case is to provide them with as much stability as possible and to remember that they still want and deserve the chance to bond with both parents. According to Planning for Shared Parenting: A Guide for Parents Living Apart, children benefit when parents:
• Communicate with each other in a courteous “businesslike” manner.
• Are on time and have children ready at exchange time.
• Avoid any communication that may lead to conflict at exchange time.
• Encourage the children to carry “important” items such as clothing, toys and
security blankets with them between the parents’ homes.
• Follow reasonably similar routines for mealtime, bedtime and homework time.
• Communicate about rules and discipline in order to handle them in similar ways.
• Support contact with grandparents and other extended family so the children do
not experience a sense of loss.
• Are flexible in developing parenting plans to accommodate their child’s
extracurricular activities and special family celebrations.
• Make time to spend alone with their children when the parent has a new partner.
• Are with their children during scheduled times and communicate with their
children when they cannot be with them.
• Respect the other parent’s scheduled times with children and do not schedule
plans that will conflict.
• Discuss any proposed schedule changes directly with the other parent.
• Support the child’s relationship with the other parent and trust the other’s
parenting skills.
• Assure the children that they did not cause the divorce and that they do not have
the power to reverse the process.
Click here to view Mistake #5.
Wednesday, March 7, 2012
How do I serve Divorce Papers on my spouse (at Fenway Park)?
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:
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...
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).
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...
Tuesday, March 6, 2012
Post-Divorce Problems: My Children Aren't Safe with my Ex!
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.
Monday, March 5, 2012
How should I tell my spouse that I want a Divorce?
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| Card Designed By: Clara Chandler Click here to purchase. |
Although many couples know a Divorce is coming, in almost all cases one person decides first that the marriage is irretrievably broken down and there is no chance of reconciliation. When that happens, the way that the subject is brought up can set the tone for the case moving forward. Parties can discuss the issue directly, or lawyers can bring up the subject via telephone call or letter. In some cases it may be necessary to have the party served by a constable or sheriff even though that might start the case on a negative note.
While many couples will be comfortable enough to discuss the choice to divorce directly, there are two types of cases where it doesn't make sense to do so:
1. The first and most obvious reason that discussing divorce directly may not be appropriate is in cases of domestic violence. In these cases reducing or avoiding potentially volatile interactions is most important. Similarly in cases where one party fears the other (even if there isn't a history of violence) then direct communication may be problematic.
2. In cases where funds may be wasted or hidden, it is sometimes important to have the other party served with the divorce complaint and summons as soon as possible. This is because the Automatic Restraining Order (Supplemental Probate Court Rule 411) prohibits parties from transferring or wasting assets except for specific exceptions, and goes into effect once they are served with the Complaint for Divorce. In these cases, discussions could tip the other party off and they might avoid service of the complaint.
Sunday, March 4, 2012
Can the Family Court amend a Restraining Order from the District Court?
That pilot program ended 12 months later and was not renewed, which means that the courts do not currently allow the transfer of a 209A Restraining Order case from district court to the probate and family court. This raises the question:
What happens if there is a 209A Restraining Order in a district court and a Divorce case between the same parties in the Probate and Family Court?
If there are no children in the case, the Probate and Family Court is unlikely to concern themselves with the Restraining Order case because the divorce is primarily dealing with financial issues which don't typically require direct communication between the parties.
However, in cases with children, there are many issues which can require parents to communicate and or have contact for visitation transitions. Often-times restraining orders will initially include the children but later be modified to allow for parenting time. In many cases of domestic violence both children an spouses require protection from an abuser. However, there are also many cases which only involve threats or allegations relating to the spouses and the children are not involved in the allegations.
When an initial restraining order is entered in a District Court and the parties are also involved in a case at the Probate & Family Court relating to the custody or visitation with the minor children, it is likely that the Family Court Judge will be asked to enter a visitation plan. The problem arises when the arrangements for visitation violate the existing restraining order. In these cases the restraining order needs to be amended so there is not a conflict with the Family Court order. The Guidelines for Judicial Practice: Abuse Prevention Orders (rev. Sep 2011) contain specific procedures for the Family Court to follow in these instances.
Pursuant to ADMINISTRATIVE ORDER 96-1, the Family Court Judge can exercise special jurisdiction over the district court case for the specific purpose of amending the restraining order to match the provisions of the custody order. Once the Family Court Judge has chosen to exercise this special jurisdiction, which requires that the Plaintiff on the restraining order have notice and opportunity to be heard, the Court must follow the following procedure:
The Probation department in the modifying court shall cause the modified order to be transmitted by facsimile to the Probation department of the issuing court promptly to enable the Probation staff of the issuing court to enter the order into the Registry on the day on which the modified order is issued. Upon receipt of the modified order, the Probation department in the issuing court shall promptly provide a copy of the modified order to the staff or the Clerk or Clerk-Magistrate of the issuing court, who shall promptly docket and file the modified order. The Register of Probate in the modifying court shall cause the modified order to be mailed to the Clerk or ClerkMagistrate of the issuing court no later than three days after the modified order is issued.Given how understaffed the courts currently are this is probably easier said than done, and if you are a party to such an action you should make sure that the restraining order is updated with both the issuing court and the police department before you act on the modified order. Otherwise you risk being charged with violation of the restraining order.
For more information about restraining orders in Massachusetts visit our new Restraining Order website, or schedule a free 1-hour consultation.
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