Should I Rent or Buy a new Home?

To Rent or Buy? That is the question. Trulia.com shows us, with some neat graphics, that the answer depends on where you live. If you're in Phoenix of Jacksonville: Buy, Buy, Buy. But not so fast in New York City or Boston.

No matter where you live, one of the most expensive parts of a divorce is changing your lifestyle from supporting one household on your current incomes to supporting two households. Whether or not the current home is sold or one person stays there, in the end both parties are faced with the question: is it better to buy or rent?

Traditional thinking is that it is better to buy. It is the American Dream to own your own home, and the government assists you by offering a mortgage interest deduction on your income taxes. But as Trulia.com's graphics demonstrate, that may not be enough in todays market.

Let's use Natick, Massachusetts to test an example:

The average rent for a 2BR home or apartment in Natick in 2010 was $1400. The cost of living in such a home for two years would be $33,600 not counting tenant's insurance. Let's estimate tenant's insurance at approximately $150 per year which results in the total two-year cost of renting as $33,900.

The average home price for a 2BR home in Natick in 2010 was $286,000. If you buy a home today at $286,000 and put down 10% ($28,600) you would need a mortgage of $228,800. At current rates (4.468%) and for a 30 year fixed mortgage just the mortgage payment would be $1,039 per month. The property taxes on that home would be approximately $3,603.60 per year, and homeowner's insurance would be approximately $1000 per year. Adding the cost of the mortgage, homeowner's insurance and taxes together the monthly cost of buying the home is $1,422.63 per month, which results in the total two-year cost of buying as $34,143.

For a 2BR in Natick, the figures for renting and buying are pretty close and if we take into account the mortgage interest income tax deduction for buying, buying would seem to be the way to go (if you have an effective tax rate of 15% then you could save approximately $1,370 in taxes in the first year). In this example by buying a home instead of renting you'll save approximately $2,500 over the first two years.

But wait, there's a catch!

Remember that $28,600 you tied up in the equity in your home as a down payment? Risking that down payment on the housing market, is ultimately the cost that you paid for saving $2,500 over two years. And the reason that traditional thinking says that it is better to buy is because traditionally the value of real estate over time goes up.

To keep using Natick as an example, the value of the average 2BR from 2001 to 2011 went from $226,000 to $280,400. So if you bought a home in 2001, it looks like you made a good investment. But what if you bought in 2005. The average 2BR in Natick was $333,000 in 2005. If you only put 10% down and bought in 2005 you are now well underwater on your mortgage. And according to Boston.com the trend is continuing: Sinking prices put more homeowners underwater.

Essentially, this means that you must ask yourself How long do you want to stay in your new home? If you may want to move in 2 years, you will have saved slightly on your monthly cost by buying (due to the tax benefits), but if your house is worth less you may have lost your down payment. And this is assuming you can even sell your home as quickly as you want. Renting offers mobility without having to wait for a buyer to come along, and without risking your liquidity.

Of course, if the housing market turns around or you plan on staying in your new home for a much longer time then you may still benefit from buying. Essentially you are guessing whether today is more like 2001 or 2005? Well... do you feel lucky?

To compare these figures for your town or city, check out Zillow.com for home price averages and mortgage rates, and ApartmentRatings.com for rental market trends.

The new KelseyTrask.com - Coming Soon!

We're currently working on a rollout of a new website/facebook/twitter/blog social marketing and networking campaign.

As part of our new services we will offer constant updates on what we are working on (through twitter and facebook), a Question of the Week (and Answer of the Week through our new website and through this blog), and lots of information and tools to assist those involved in or considering filing for divorce or bankruptcy relief.

If you'd like to view the most current draft website it is likely available here. We welcome comments and input as to how we can make it better. Please note, though, that because it is a draft many of the links will not work at this time.

Please check back often and we appreciate the help of our many friends, family members and colleagues who have assisted us greatly in this undertaking.

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

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

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

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

Could I be Forced to Pay Child Support for someone else's Child?

Casino Billionaire to pay $100,000 per Month in Child Support for Non-Biological Child: As reported in a recent Boston.com Article, Billionaire Kirk Kerkorian, the major shareholder of MGM Resorts International, has settled with Lisa Bonder Kerkorian, to whom he was married for only 28 days, to pay over $10 million in child support arrears as well as $100,000 in child support per month. Even more shocking than the figures and the short term of the marriage is the fact that Mr. Kerkorian is not the biological father of the child and was purposefully defrauded by the mother who faked a DNA test.

In Massachusetts, a person who is married within 300 days of the birth of the child to the mother is the legal parent of the child even if they are not the biological parent. This is a presumption that can be overcome with a paternity test. However, even if the paternity test proves that the husband is not the biological father, this does not necessarily mean he is not the legal father. Someone who acts like a parent for a period of time long enough for the child to be attached to them as a parent has certain rights and obligations. The best interest of the child require that a "de-facto" parent continue to be involved in their life (i.e. have custody and visitation rights), and in some cases also pay child support.

Even absent a marriage, if a father signs a Voluntary Acknowledgement of Paternity and is added to the Birth Certificate, then they are presumed to be the Father. After one year passes it becomes almost impossible to undo this legal acknowledgement of parentage. In the case of a faked paternity test or other fraud it might be possible to have a Court undo the acknowledgement even after the one year period. However, in many cases, as was the case with Mr. Kerkorian, the father has now been involved in the child's life and would be considered a "de-facto" parent anyway.

Although, California law may be different than Massachusetts law regarding these types of cases, it is still refreshing to see Mr. Kerkorian willing to pay significant child support and take responsibility for a child that is biologically not his. Of course, this reinforces what we've already learned from so many other non-traditional and adoptive families: You don't have be genetically related to a child to be a good parent.

Child Support v. Alimony - What happens when the non-custodial parent needs support?

We received the following question as an Anonymous Comment on our previous post: Alimony Reform and Child Support: What will Change?

How will you calculate child support in a case where the dependent spouse does not have physical custody and the incomes of the parties are grossly disparate?


With the new Alimony Reform in Massachusetts taking effect on March 1, 2012, we have been hearing this question a lot.  Although it is an unusual situation to have the custodial parent also be the higher earning spouse, it does happen.

Under the new Alimony statute:

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

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

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

Since the Massachusetts Child Support Guidelines presumptively apply up to a total gross income of $250,000, this section means that cases where the total gross income does not exceed $250,000 there won't be any income leftover to calculate alimony (absent some deviation factor).

While this could mean less overall support for cases where the custodial parent is also the lower wage-earner, the impact is even more significant when the non-custodial parent is the lower wage-earner.  While the non-custodial parent who earns less gets a break on child support, it seems unfair to say they never qualify for alimony if the total gross income of the parties is less than $250,000.

For example, consider the following sample case:

Mom has been the primary care parent and is a doctor who owns her own practice and has reasonable control over her hours and earns $200,000 per year.  Dad is a CNA who works odd hours and therefore has not spent as much time with the children.  He earns $35,000 per year.  The parties have been married for 15 years and have two children, ages 4 and 5.

The Massachusetts Child Support Guidelines will require that Dad pay Mom $94 per week in child support (approx. 14% of his income).

Since all of Mom and all of Dad's income were used in calculating child support a pure reading of the statute leaves nothing left to calculate alimony.  However, if there were no children this would clearly be an alimony case.  One argument in favor of this reading is that Mom who is the custodial parent in this case will be able to provide a better household for the children based on her higher income and no alimony.  The counter to that argument, though, is that keeping the Dad from having a similar lifestyle could damage his ability to spend time with the children and their desire to spend time at Dad's house, thereby encouraging Dad to be less involved rather than more involved in the children's lives.

It is unknown at this point how the trial courts and the appeals court will read this section.  Many practitioners that we have spoken to believe Judges will look to find a way around this "unfair" result, and use deviation factors to allow them to award alimony to the lower-earning spouse in a case like this (or at least reduce or eliminate child support).

The problem with these cases is that they are often not as clear cut as the example above, and often will involve prejudicial judgments made about the low-earning father or the non-custodial mother (i.e. assuming something is wrong with them).  Until the Appeals Court or SJC rules on this type of case we won't know for sure how this case will be dealt with, and we expect that the lower courts will vary in their application of the statute to these types of cases.

Divorce or Long-Term Separation: A Comparison.

According to a recent New York Times article, more couples are staying married in long-term separations instead of getting divorced.

There can be some advantages to staying married, even if separated. For some, their religious or family obligations make divorce impractical. For others, financial considerations can warrant staying married. If a couple continues to share finances, it can often be beneficial (at least for one of the parties) to stay married. But there are risks as well.

In Massachusetts, there is no such thing as a legal separation. This means that if you remain married, even if separated, then there are certain obligations and liabilities that continue. Although there is an action that allows for support in a separation (called a Complaint for Separate Support, Custody and Visitation), this action deals only with the issue of support, custody and visitation for parties living apart. A Separate Support action does not separate assets or debts, and does not address the ongoing obligations, such as joint liabilities.

Depending on the reasons that two people are staying together, long-term separation may make sense, but if your marriage is in reality broken down, you should at least consult with an attorney to know what effect long-term separation could have on your legal rights and obligations. As a simple example, property division and spousal support obligations can be significantly different based solely on the length of the marriage. If you are separated but remain married for a long period of time you could therefore end up with a completely different resolution if divorce was truly inevitable.

Seminar: What Happens to the Marital Home During Divorce?

The Divorce Center Offers Seminar:
What Happens to the Marital Home During Divorce

The Divorce Center, a non-profit organization of professionals from multiple disciplines providing support and education for people going through separation or divorce, is offering a seminar entitled:

“What Happens to the Marital Home During Divorce” on June 7, 2012 from 6:30 to 8:30 p.m. at the Wellesley Free Library, 530 Washington Street, Wellesley, MA

Carol Khouri, CFP, CDFA, a financial advisor with Wingate Wealth Advisors, will lead and moderate a panel of legal, mortgage and banking professionals who specialize in working with and representing divorcing couples and individuals. 

The panel of speakers includes:

• Matthew P. Trask, Esq., Kelsey & Trask P.C., Framingham, MA;
• David M. Gaffin, MBA, senior loan officer, Greenpark Mortgage, A Division of Berkshire Bank, Needham, MA; and
• Barbie Jetter, MS, CPC, CDPP, regional lending manager, Bank of Canton, Canton, MA. 

The panel will discuss the various housing options that are available to divorcing couples during and after the divorce. Topics will include:

• Selling the marital home and splitting the proceeds;
• One spouse staying in the home until children graduate high school or college;
• One spouse buying out the other’s interest;
• What happens when there is no equity and the couple needs to do a short sale; and
• Ramifications of doing a short sale. 

This seminar is offered free of charge, however a donation of $20 is suggested.

For more information or to register, visit http://thedivorcecenter.org.

Does a Divorce affect my Homestead protection?

A new Massachusetts Homestead law was signed in December, 2010 (taking effect in March, 2011) and there are some provisions that relate to how a homestead is or is not affected by divorce:

Effect of Homestead on Child Support or Alimony: M.G.L. c. 188 Section 3(b)(4) - The Homestead Exemption does NOT protect you from collection of child support or spousal support (a/k/a alimony).

Effect of Marriage on Homestead for Spouse: M.G.L. c. 188 Section 5(d) - "The estate of homestead of an individual who records a declaration of homestead under section 3 and who subsequently marries shall automatically be deemed to benefit that individual’s spouse."

Effect of Divorce Orders on Homestead for Spouse and Children: M.G.L. c. 188 Section 6 - "In a case where a complaint for divorce, separate support, guardianship or conservatorship has been filed in the probate court by or against a person entitled to the benefit of an estate of homestead, the spouse and minor children of that person may use, occupy and enjoy the homestead estate until ordered otherwise by the probate court. The recording of an order of the probate court, together with the description of the homestead estate, shall prevent a beneficiary of the homestead estate from disposing of the estate until such time as the probate court revokes the judgment."

M.G.L. c. 188 Section 7 - "The estate of homestead existing at the death or divorce of a person holding a homestead under section 3 or 4 shall continue for the benefit of the surviving spouse or the former spouse and minor children who occupy or intend to occupy the home as their principal residence. The estate of homestead of the surviving spouse or former spouse and minor children shall continue notwithstanding the remarriage of the surviving or former spouse."

Thank you to Danielle Van Ess, Esq. for providing all of this information (and practically writing this blog for us). We recommend you check out her blog post regarding how the new Homestead Law affects Estate Planning: Why You Should Care About the New MA Homestead Law.

Do I have to Disclose My Residential Address in a Divorce?

Where you reside can affect whether or not the Court has jurisdiction over your case as discussed in a previous post: Where you get Divorced matters! - British woman loses rights to £1.2 Million Pension.

Assuming that Massachusetts has jurisdiction, you still need to disclose your address pursuant to Massachusetts Domestic Relations Procedure Rule 11 which states in pertinent part: "A party who is not represented by an attorney shall sign his pleadings and state his address, telephone number, and e-mail address if any." The Court needs to know your address so that the Judge can verify that jurisdiction is proper and in the event the court needs to send you Notice of any hearings or other matters. Likewise the opposing party needs your address in order to send you proper notice of pleadings pursuant to Massachusetts Domestic Relations Procedure Rule 5(b) and a P.O. Box is not considered sufficient.

It is possible to withhold your address from a party to a divorce case if you have reason to believe that disclosing your address will place you in danger. If this is the case, you must file any paperwork with the Court in person with a Motion to Impound Address and explain to the Judge why you need your address to be kept hidden from the other party. This is usually used in cases of domestic violence.

What is the difference between Merger and Survival?

One of the most important legal distinctions for clients to understand when signing a Divorce Agreement (also commonly called a Separation Agreement) is the difference between merger and survival. The distinction between these two designations could mean all the difference in whether an Agreement is fair and reasonable or not. It can affect whether or not you will have to return to court in the future, and could determine issues as important as whether or not alimony can be changed (increased, decreased, added, or eliminated) in the future.

Unfortunately, most pro se parties who prepare Separation Agreements on their own do not understand what this language means. Oftentimes I have also found that parties who used a mediator, but did not review their Agreement with a lawyer, do not fully understand what they've agreed to when it comes to the merger/survival clause. This clause is so important that spending a few hundred dollars to at least review your proposed Agreement with an attorney could save you much more in the long run.

So.... What is the difference between Merger and Survival?

The technical legal definitions of these terms are as follows:

If a portion of the Separation Agreement merges then this means that said portion becomes absorbed into the Judgment of Divorce, and does not exist as a separate entity. Any portion of an Agreement that merges with the Judgment of Divorce is open to modification if one party can show that there has been a significant and material change in circumstances, and that change warrants a change in the Agreement.

If a portion of the Separation Agreement survives then this means that said portion does not combine with the Judgment of Divorce, and continues to exist as a separate contract between the parties. Any portion of an Agreement that survives the Judgment of Divorce is NOT open to modification.

In simple terms:

Merged agreements can be changed in the future.

Survived agreements can NOT be changed in the future.

Although it is very unusual to have property divisions re-opened by the Court, the safest way to ensure that it cannot be is to clearly state that all property division sections survive the Judgment of Divorce. The issue of merging or surviving alimony is often more complicated. For example, while the parties can waive alimony as part of an agreement, that waiver is not forever binding unless the parties also agree to survive that agreement. Obviously this can be a significant difference if there is a change in the future that would warrant an award of alimony (such as one party becoming disabled). We encourage clients to give a lot of thought to this distinction before making a decision on this issue because it could have a significant impact on their future finances.

If you are not sure whether your Agreement protects you when it comes to the merger/survival clause then you should meet with an Attorney to discuss this. To meet with Kelsey & Trask, P.C. you can call us at (508) 655-5980 or e-mail us.

Happy Holidays

How do I get protection from an abusive spouse?

In Massachusetts, there are three statutes which can provide protection from an abusive spouse.

As a preliminary warning, none of these statutes, nor any other piece of paper, can physically prevent someone from harming you. These laws only provide for extra penalties and orders to discourage such behavior. If you are in fear of being harmed, and don't think that anything will stop your abuser then you should call a Domestic Violence Program for help.

Despite the limitations of these orders, they can still be useful tools in discouraging, preventing and punishing abusive behavior. The three statutes that can be used by victims of abuse to obtain protection from an abusive spouse are:

1. M.G.L. c. 208, § 34B - Order to Vacate Marital Home

Authority: The Probate & Family Court may order a husband or wife to vacate the marital home as part of a divorce or separate support proceeding.

Standard: The Court may order the offending spouse to vacate "if the court finds, after a hearing, that the health, safety or welfare of the moving party or any minor children residing with the parties would be endangered or substantially impaired by a failure to enter such an order."

Time limitations: The Order to Vacate shall not exceed ninety days, but can be extended for an additional "certain period of time, as the court deems necessary or appropriate."

2. M.G.L. c. 209A - Abuse Prevention

Authority: If the Trial Court (usually the District or Probate & Family Court) finds abuse they shall order a family or household member to:

(a) refrain from abusing the plaintiff;
(b) refrain from contacting the plaintiff; and
(c) vacate and stay away from the household, multiple family dwelling, and workplace.

The Court can also award the plaintiff temporary custody of any minor children and provide for visitation or child support.

Standard: A family or household member includes persons who:

(a) are or were married to one another;
(b) are or were residing together in the same household;
(c) are or were related by blood or marriage;
(d) have a child in common regardless of whether they have ever married or lived together; or
(e) are or have been in a substantive dating or engagement relationship.

“Abuse” is defined as "the occurrence of one or more of the following acts between family or household members:

(a) attempting to cause or causing physical harm;
(b) placing another in fear of imminent serious physical harm;
(c) causing another to engage involuntarily in sexual relations by force, threat or duress."

Time limitations: "Any relief granted by the court shall be for a fixed period of time not to exceed one year. Every order shall on its face state the time and date the order is to expire and shall include the date and time that the matter will again be heard. If the plaintiff appears at the court at the date and time the order is to expire, the court shall determine whether or not to extend the order for any additional time reasonably necessary to protect the plaintiff or to enter a permanent order."

3. M.G.L. c. 208, § 18 - Pendency of action for divorce; protection of personal liberty of spouse; restraint orders authorized

Authority: In a divorce action, the Probate & Family Court may prohibit the husband or wife from placing any restraint on the personal liberty of the other.

Standard: The Court may "make such further order as it deems necessary to protect either party or their children, to preserve the peace or to carry out the purposes of this section relative to restraint on personal liberty."

Time limitations: Under Champagne v. Champagne, 429 Mass. 324 (1999), these orders may be permanent, until further order of the Court.

The Divorce Roller-Coaster: An Infographic of Options

There are four tracks you can choose from to get divorced in Massachusetts: Direct Settlement Negotiation, Litigation, Mediation, or Collaborative Divorce. We created the following infographic to help you visualize the different tracks you can choose from, and how you might end up moving from one track to the other (as well as some of the important waypoints along the way):

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

To reprint copy and paste the following code:

<a href='http://familylaw.kelseytrask.com/blogimages/massachusetts_divorce_options.gif'><img style='display:block; margin:0px auto 10px; text-align:center;cursor:pointer; cursor:hand;width: 500px; height: 2083px; border-width:0px;' src='http://familylaw.kelseytrask.com/blogimages/massachusetts_divorce_options.gif' alt='' title='Click for Full Graphic'></a>

Click here for more information about Divorce Options in Massachusetts.

The Honeymooners' Divorce: Collaborative Law, Mediation or Litigation - Part III

The Kramden's and Litigation:

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!."

Recently Ralph was caught using his cell phone while driving and lost his job as a bus driver. When he came home and told Alice she berated him for his stupidity and Ralph became extremely angry. He got right in Alice's face and said, as he so often has, "One of these days... Pow! Right in the kisser! One of these days Alice, straight to the moon!." Alice replies "I'd like to see you try" and in response Ralph steps closer to her and pulls back his arm making a fist. Rather than wait to see if Ralph would actually hit her, Alice immediately backs away. Ralph does not follow her, but Alice is afraid and leaves the apartment.

She goes into a friend's apartment down the hall and calls the police. The police arrive and after interviewing both parties they indicated that they are not going to arrest Ralph. They ask Alice if she wants to request a 209A restraining order against Ralph and she states that she does. The police call the emergency Judge who approves an emergency restraining order. The police escort Ralph out of the apartment who has calmed down and accepts the police's request without any fight or argument.

Ralph, escorted by the police, collects some of his clothes and moves in with his friend, Ed Norton.

The following morning, Ralph and Alice both show up without lawyers at a hearing in the Suffolk District Court. Alice indicates during the hearing that she was afraid that Ralph was going to hit her during their argument, even though he has never carried out his threats in the past. Alice also states that she is not afraid of him right now and that she feels safe so long as he does not move back in. Alice also indicates that she intends to file for Divorce and that she doesn't want Ralph to move back in. Ralph agrees that he won't move back in and that he will continue to live with Ed. The Judge indicates to Alice that he can only extend the Restraining Order if she has a "reasonable fear of imminent serious physical harm," and given her testimony he cannot extend the restraining order.

Both Ralph and Alice consult with attorneys. Alice does not consult with a free Legal Aid service because she is back to working as a part-time secretary and she believes that she does not qualify for their services.

Alice borrows money from a friend to hire the attorney she consulted with because she doesn't feel safe negotiating directly with Ralph. Alice's attorney files a Complaint for Divorce.

Eventually right before the Pre-Trial, Ralph hires an attorney as well and the Divorce case is settled via Separation Agreement at the Pre-Trial. Both parties end up with some debt because of the cost of their legal fees.

COULD THIS HAVE GONE BETTER: Unfortunately, when domestic violence is an issue in a case, it is practically impossible to make use of mediation or collaborative law. Although mediation or collaborative law could have been cheaper, both options depend on a certain amount of trust between the parties and it is necessary for there not to be any threat of coercion.

Even in an instance where no physical violence has occurred, the threat of violence can be just as damaging and puts the victim at a disadvantage in any negotiation (notwithstanding the ongoing safety concerns).

As was suggested by one of our voters, DGVE law, Alice, might have been better served by having a trained domestic violence advocate work with her. Resources for domestic violence victims in Massachusetts are available here. Alice should have also discussed her case with potential legal aid services before assuming she didn't qualify. Resources related to finding legal counsel and/or legal services are available here.

Lawyers particularly vulnerable to E-mail Scams

By now most of us have heard of the Nigerian/Check Cashing E-mail scams (hopefully). The basic outline of the scam is as follows:

You receive an email that offers to assist you in obtaining money that belongs to you, or offers to buy something from you for a price greater than you advertised it for (typically received when you put something for sale on Ebay or Craigslist or similar sites). The hook is that they are offering to pay YOU money. Once you receive the check and cash it, you just have to send them back a portion of it. The trick is that the check is a bad check, even though your bank may let you draw funds on it after three days. These out of state, or out of country bank checks take advantage of a banking loophole that most banks will allow you to draw on a check after three days, but the bank doesn't actually receive the funds on the check for up to ten (10) days. Once the check bounces, the bank will hold you responsible for the money (often just taking it out of your account).


THE TWIST FOR LAWYERS:

A Houston lawyer learned the hard way that lawyers are not immune to these scams. The scam works essentially the same way, but instead of offering unknown riches or an unexpectedly high price, the scammer offers the lawyer something much less unusual, a case. Of course, if the case sounds too good to be true it probably is, but as lawyers and business people we feel obligated to respond to every client inquiry.

I was inspired to write this because not long after our firm posted a website, we received a seemingly typical inquiry regarding a collections case. The redacted inquiry follows:

"Attention Counsel:

I have previously sent you an email; please confirm the receipt of this mail due to the urgency of this matter. If you are not in position to represent us at the moment kindly advice immediately. After a careful review, we decided to contact you to represent our company in North America. ---------------- Ltd is a manufacturing company in Asia.

We would require your legal representation for our North American delinquent Customers. We are of the opinion that a reputable attorney is required to represent us in North America in order for us to recover monies due to our organization by overseas customers, and as well follow up with these accounts. In order to achieve these objectives a good and reputable law firm like yours will be required to handle this service.

We understand that a proper Attorney Client agreement must be entered into by both parties.
This will be done immediately we receive your letter of acceptance.

Awaiting Response.
Yours Faithfully,
--------------------"

I immediately become suspicious due to how vague the message was, and the fact that they had not previously sent me an email that I was aware of. When I Googled the company, however, they had a real website that looked legitimate on first glance. What seemed odd when I spent some time on their website was that I could not find a phone number to call.


WHY LAWYERS SHOULD BE EXTRA CAREFUL (CLIENT FUNDS)

As lawyers we have to be extra extra careful with the retainer's paid to us by our clients. We are required to keep them in a specifically designated Client Funds account (in Massachusetts called an IOLTA account) and any co-mingling of these funds with non-client funds can mean serious trouble with the Bar.

If a lawyer deposits a scammer's bad check in their Client Funds Account and then pays out on that check, that lawyer is essentially using other clients' money to pay the scammer, a BIG MISTAKE.


HOW DO YOU PROTECT YOURSELF

First and most importantly, never pay out on a check until after ten (10) days has passed, especially if you don't know the bank and/or it is not a local bank (if it is a major or local bank then you can call them directly, and at least confirm that the check is good, never call a number on the check because it could be a fake).

This can be difficult for a lawyer who has a "client" asking them to pay funds out, especially if, for example, the "client" was asking for a return of their retainer check because they wanted to hire another attorney. You can prevent having to deal with this type of misunderstanding by warning a client when they give you a check of the delay, and by notifying them of the ten (10) day waiting period in your Retainer Agreement.

Second, you can try to avoid scams by being diligent about screening clients. Don't let a client hire you by e-mail, talk to them on the phone and meet them in person. Even if it requires traveling to another country, if it's a potentially significant client shouldn't you meet them in person anyway, and if they have a business, visit their operation? Often just sending an adequately inquisitive reply email asking for more information can sniff out a scam. Here's a sample of our reply to the above inquiry:

"Mr. --------

First off, I would like to note that I have not previously received an email from you. Regardless I am happy to respond to your recent email, copied below.

I am licensed as an attorney in the Commonwealth of Massachusetts only and am therefore only able to practice in Massachusetts. If you have any collection suits from customers in Massachusetts then I would be able to handle those matters for you. Please provide me with a phone number or call our office at (508) 655-5980 to discuss these matters directly.

I would also like to note that your company, -------------------------- Ltd, is not registered with the Secretary of State of the Commonwealth of Massachusetts. Please be aware that if you perform any business activities with customers in the Commonwealth of Massachusetts then you should immediately register as a foreign corporation with the secretary of state. The forms and information relating to said registration are available on the Secretary of State's website at http://www.sec.state.ma.us/COR/coridx.htm .

Please notify us once you have completed this registration or if you have any questions regarding same.

In addition, as I stated above, I would only be able to work with your company if you had business dealings with customers in Massachusetts. Can you please provide me with more information about your potential collection suit(s) so that I can appropriately evaluate whether we are able to take the case on a contingency or hourly rate basis.

In addition, please provide us with the names and addresses of any business or individual customers that you are seeking to initiate action against. This information will be kept confidential but is necessary for us to ensure that we do not have any conflicts (i.e. we may have represented one of your customers in the past and would therefore be precluded from suing them).

Thank you for your attention to these matters and if you should have any questions or concerns. Looking forward to potentially working with you, I remain,

Very truly yours,

Justin L. Kelsey, Esq."

Of course, the reply I received made it clear this was a scam, because for starters they didn't answer any of my questions. For more information about electronic scams or to report a scam check out the FBI's Cyber Investigations website.

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

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


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


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


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

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

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

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

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


The combination of these changes would have the following effects:


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


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


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


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


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


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


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

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

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


Section 4 of H.1306:

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

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


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


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

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

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


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

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

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


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


Conclusion


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


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


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


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


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


Child Custody Mediation

Collaborative Child Custody Resolution

Child Custody Litigation

How to explain the new Domesticated Animal Restraining Order provisions to your pet!

On October 31, 2012, a new statute took effect in Massachusetts adding protection for domesticated animals in restraining order cases.  This does not mean that you can obtain a restraining order for your puppy from that feisty dog next door.  The new provisions only allow for a court order relating to the possession, care and protection of a pet when a temporary or permanent vacate, stay away, restraining or no contact order is already in effect or has been requested.   In simpler terms: this new law allows custody orders and protection orders for pets to protect them from the abusers of their human owners.


So what do you do when your pet asks you how this new law affects them?  We've provided some helpful answers to make that conversation go more smoothly:


"Super Awesome Best Friend, how can I help protect you from that angry guy?"

"That's not something you have to worry about anymore.  The court provided me with an order that prevents him from coming near our home.  I also filed a new form that made sure that the court included you in that order.  The court ordered that you will continue to live with me and that he can't abuse or threaten either of us. "

These additional orders can protect pets by assigning their care and protection to the Plaintiff and by ordering the Defendant to refrain from abusing, threatening, transferring or otherwise disposing of a domesticated animal.

"My plot to scare away that crazy woman by showing her a disemboweled chipmunk was clearly successful.  You're welcome!"

"Okay, that's not really a question, but you just reminded me that I didn't ask for protection for you when I obtained my restraining order.  Although I know you can protect yourself, I remember recently that she threatened you after that chipmunk stunt.  Tomorrow I'll go down and file a request to add protection for you to the restraining order."

A request doesn't have to be filed with the original restraining order but can be filed afterwards when an order is already in effect.

"Will this new law help protect me from sharks?"

Unfortunately, the statute is not for use on its own to protect animals from potential abuse or being eaten by other animals.  If someone you are in a relationship with ever tries to feed your fish to the sharks, then you may be able to get the court's help to protect them.  However, unless your fish is particularly valuable, it is unlikely the court will take the abuse or custody of a fish seriously.  Try explaining that to your pet fish, though, am I right?  Unless you're best friends with Aquaman, you may just need to change the subject.  In a few seconds, the fish will just forget they asked anyway.


"I heard the fish weren't safe, but what about me?"

"The statute does not define "domesticated animals."  Since you are so cute and cuddly, I'm sure the Judge would want to ensure that you were protected from any abuse."

Of course that's just speculation, and the reality is that it is impossible to tell where Judges will draw the line on this new law.

While the goal of protecting animals from abuse is a lofty one, it seems a little absurd to think about protecting pets as a priority when domestic violence is such a serious danger to the human victims.  While we hope every victim's pet is safe from abuse, we also hope that no victims are left unheard because a court docket is clogged with pet custody issues.

Can I file for divorce in Massachusetts? An Infographic

The following chart displays the paths for determining whether you qualify to file a divorce in Massachusetts. Our hope is that this infographic can help clarify the confusing question of jurisdiction over a divorce case in Massachusetts by consolidating the statutes and case law into one chart.

As we discussed in a previous post, just because you can file for divorce does not necessarily mean the court has jurisdiction over all issues in your case. If your case involves residency, property, or children living in multiple states, you should definitely consult with an attorney.

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

To reprint copy and paste the following code:

<a href='http://familylaw.kelseytrask.com/blogimages/massachusetts_divorce_jurisdiction.gif'><img style='display:block; margin:0px auto 10px; text-align:center;cursor:pointer; cursor:hand;width: 500px; height: 1667px; border-width:0px;' src='http://familylaw.kelseytrask.com/blogimages/massachusetts_divorce_jurisdiction.gif' alt='' title='Click for Full Graphic'></a>

Click here for more information about Divorce in Massachusetts.

It's a Trap!: The Massachusetts Alimony Debate

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.

Because of my involvement in the creation of the Divorce Spousal Support Calculator I am often asked if I think alimony in Massachusetts is fair.

Of course, this is a loaded question, and so my typical answer is that nothing in the law is "fair", it is simply our best efforts to be "fair and equitable." In creating the Calculator, however, I have already expressed a desire for greater consistency. This in itself is an admission that I would like to see improvement in the current statute.

Many others have expressed there displeasure with the current statute as well. As a result there is an ongoing (and at times heated) debate in Massachusetts right now over how to amend the statute. But how this debate is now framed is a trap. There is no right answer because the choices are both inadequate.

The Boston Business Journal (Dueling Alimony Bills Raise Hackles in Legal Circles), NECN, WBZ, the MetroWest Daily News, and even The Wall Street Journal have all covered the debate with varying degrees of impartiality. Many of these stories concentrate on two bills that have been presented in the Massachusetts Legislature. The House Bill No. 1785 would add numerous changes to the current statute, including limitations on duration, sunset provisions reducing alimony after five years, limitations on increases in alimony to specific circumstances, termination of alimony upon retirement of the payor or cohabitation of the recipient, and limitations on the courts' ability to consider cohabitation of the payor. The Senate Bill No. 1616 would add only the words "and duration" to the language specifying the powers of the courts to determine alimony.

The current statute, MGL Chapter 208 Section 34, gives Judges broad discretion in awarding alimony. Although it is my experience that most Judges are fair in their rulings, the lack of firm direction in the statute forces many cases to trial that might otherwise have been settled. Much of the criticism of the Senate Bill centers around this issue of protracted and expensive litigation. Indeed, the proponent of the Senate Bill, Newton Senator, Cynthia Creem, has been attacked as having a conflict of interest because she practices family law, and could potentially benefit from increased litigation costs.

Unfortunately, this is the type of debate you receive when only two solutions are presented to a very complicated and diverse set of problems. There are multiple criticisms of the current statute. They include the fact that the statute doesn't limit the duration of alimony, encourages litigation of the issue of alimony by its vagueness, and that it fails to address numerous scenarios in which unfair results may occur (such as forcing a payor to continue support after retirement age or when the recipient is cohabitating).

The Senate Bill admittedly only addresses one of these issues, the issue of duration. But to say that it further encourages litigation is a mistake. The current state of the law in Massachusetts is that Judges to do not have the authority to limit the duration of alimony in a Judgment. This forces further litigation because a Modification action is necessary to end alimony in cases where temporary alimony was appropriate or retirement has changed the circumstances. Adding the duration language suggested in the Senate bill could avoid future litigation, by allowing Judge's to address this issue in the original order.

In contrast, the House Bill attempts to address many of these issues at once, but takes a very specific position with respect to each issue. Since many of the proponents of this bill are alimony payors themselves (such as those quoted in another BBJ article) their conflict of interest is obvious (as opposed to the supposed conflict of interest of Senator Creem).

There are multiple ways other than the changes described by House Bill No. 1785 that we could improve the law in Massachusetts without moving it too far in favor of the potential payors. For instance, Maine has a statute that defines different types of alimony, allowing a Judge to order transitional or reimbursement support in cases where long-term support may not be appropriate.

Similarly, the House Bill's failure to address the creation of a formula (or at least a maximum), as recommended by the AAML, will leave us with the same problems of ongoing litigation. The House Bill might solve the problems of some of its proponents, but it is not going to reduce the litigation of most alimony cases which will still require the input of a Judge to decide the ultimate amount of spousal support payments.

This is why it's a trap to ask any experienced practitioner to choose between Option A (the House Bill) and Option B (the Senate Bill).

Whether or not changes to the statute favor the recipient or the payor, true reform of the alimony statute should provide consistency. Therefore, the most fair way to amend the statute would be to include both a durational component and a formula for calculating the appropriate amount of alimony, while still allowing Judges to vary from the presumption if they make findings that a specific factor (as suggested by the AAML) warrants such a deviation. This is the only way to reduce litigation and provide consistency.

While everyone may not consider a formula "fair", it will at least have the advantage of treating everyone the same, and the first step towards fairness is consistency.

For more information about the various formulas in use in other states (and by some Massachusetts Judges) view the Divorce Spousal Support Calculator or our accompanying Article.

What is LAR and why you should care!

Limited Assistance Represetation (also called "unbundling" or "LAR") is a program that allows a lawyer to provide partial services to a client, limiting the attorney's representation to only a specific matter while the client mangages the remainder of the case. On May 1, 2009, the Supreme Judicial Court issued a press release that LAR is now permitted in all trial court departments in Massachusetts.

In Famly Law, this often means that the lawyer either assists in the preparation of court pleadings, but doesn't go to court, or agrees to only go to court for specific events. Limiting services in this way allows for greater predictability in the amount of time an attorney might spend working on your case. This predictability allows us to provide a flat fee for many family law related services.

The LAR program is an exception to the normal rules, in which attorneys file unlimited appearances and "ghostwriting" is frowned upon. Under the LAR program, "ghostwriting" (writing pleadings on behalf of a client who will present them without counsel) and limited appearances are permitted by the Supreme Judicial Court to give more parties the opportunity to have legal advice even if they cannot afford an attorney for their whole case.

The program requires that attorneys participate in a training for LAR in order to be eligible to provide these limited services. Attorney Kelsey participated in the required LAR training at the Norfolk Probate & Family Court, when LAR was only a pilot program, before it was expanded in May 2009, and is therefore certified to practice LAR. Contact us for a free one hour initial consultation to learn more about LAR and the flat fee services that we offer.

Post-Divorce Problems: Should my Alimony Order Change?

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

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

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

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

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

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

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

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

Budget Cuts Force Many Massachusetts Courts to Close Early

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

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

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

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


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

What should you tell your child about your Evil Ex?

Showtimes for Phineas and Ferb

My oldest daughter and I have found a TV show that we both can agree on: Disney's Phineas and Ferb (new episodes Fridays on Disney Channel, and available on Netflix Instant Watch).  The basic plot of the show is that two boys, Phineas and Ferb, create an unbelievable invention in each episode and have an adventure, while their older sister, Candace, tries to catch them in the act of doing something dangerous.  There is a side plot in most episodes involving their pet platypus, Perry, who also happens to be a secret agent foiling the plot of Dr. Doofenshmirtz, an inept evil scientist.

Dr. Doofenshmirtz
(as seen in Phineas and Ferb)

The reason the show also appeals to adults is that the characters are well rounded and experience everyday situations in addition to the incredible plot adventures.  In the episode I Scream, You Scream, for instance, we find out that Dr. Doofenshmirtz has an ex-wife, Charlene Doofenshmirtz, and a daughter, Vanessa Doofenshmirtz.  Vanessa is a teenager who doesn't enjoy spending time with her father and would rather be with her friends (shockingly typical).  In this episode she tries to explain to her mother that her father is evil and is always trying evil schemes while she is with him (admittedly a little less typical).

Vanessa is in fact right and Dr. Doofenshmirtz, although inept, is evil.  However, Charlene, Vanessa's mother, assures her daughter that her father is not evil.  This episode proceeds with an attempt by Vanessa to get her father busted for being evil, while at the same time Candace is trying to bust Phineas and Ferb for their latest adventure.  Of course, they both fail.

But when Vanessa fails to have her mom catch her dad in one of his evil schemes, I was left wondering whether her mom already knew.  If Charlene and Dr. Doofenshmirtz were married surely she would be aware of his evil schemes.  In fact those schemes, and all the money he must spend on them, were probably the basis for their divorce.  Why would she pretend not to know and assure her daughter that her father wasn't evil?



As a divorce practitioner, I have experience working with couples trying to co-parent and have heard all kinds of stories about "evil exes".  However, in every case involving children I always give the same advice regarding what to tell the children.  Tell them simply that both of their parents love them, and they will both continue to be involved in their lives.  I tell my clients to "Say only nice things about your ex to your children, even when you don't believe them to be true."

Children's identities are tied to both of their parents.  As part of growing up we eventually learn of our parent's fallibility and mortality, and those are difficult lessons because they force us to face those same traits in ourselves.  For children of divorcing and divorced parents, they are forced to learn that their parents (and therefore themselves) can fail at relationships.  This is why children grieve the marriage just as adults do, even though they grieve it in different ways.

If you also insult or tear down that child's other parent, you are forcing them to experience even greater loss and doubt during an already difficult time.  Any action that damages a child's opinion about their parent, also damages that child's own self-esteem, especially at a time when they are already vulnerable to doubt and confusion about their identity.

Wanting your children to be healthy and self-confident, therefore, requires building their confidence in both you and your ex.  In the episode I described above, Charlene could have agreed with Vanessa that her father was evil, or at the very least quite weird.  In fact, it probably would have been more honest.  But instead she tells Vanessa "your father isn't evil, we just didn't get along.  We wanted different things."  She doesn't explain further, she simply insists that Vanessa still spend the weekend with her father.

One of the things I enjoy about Pheneas and Ferb is how well the show models behavior for children.  Phineas is always upbeat, creative, inventive and whenever someone is rude to him he responds with kindness.  I guess I shouldn't be surprised to see the show model such great behavior for adults as well.  Many divorcing parents could learn from Charlene Doofenshmirtz's example.

Should Parenting Plans include Holiday schedules?

As discussed in a previous post 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. Parenting Plans can be made specific or flexible depending on the requirements of each case but usually contain a base schedule.

In most cases it is also advisable to supplement the base schedule with a holiday schedule. At Kelsey & Trask, P.C. we have a template holiday plan that includes proposed schedules for many of the typical holidays that parents and children enjoy sharing together. However, we often encourage our clients to try and create their own holiday plans based on their family traditions, trying to keep as much of the family traditions intact for children already experiencing many changes.

If you are a separated or divorcing parent, we suggest that you pay special attention to how your children experience holidays and how each parent can continue to share in those traditions.

How long does it take to get Divorced?

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

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

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

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

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

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

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


Court Resolution:

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

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

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


Variation due to the length of the FIGHT:

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

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

What is the average length of time these issues take?

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

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

Divorce and Taxes: Issue #6. Same Sex Marriages

Unfortunately, the current state of the law creates two classes of married citizens. Traditional opposite sex marriages are one class and same sex marriages are treated as second class by the limitations created by DOMA (the poorly named "Defense of Marriage Act"). DOMA prohibits the federal government from recognizing same-sex marriages. Although the current federal administration has indicated they will not defend DOMA in Court, it is still currently the law of the land. That means that many of the tax issues described in our last few blog posts do not apply in the same way to same-sex marriages.

Issue #6. SAME SEX MARRIAGES: Below we have described the numerous ways that DOMA changes how same-sex marriages are treated when it comes to taxes:

MARTIAL STATUS: For Federal tax returns, same sex married couples cannot file under married status. Therefore, their tax status upon divorce does not change on their federal returns.

ALIMONY: Because same-sex former spouses cannot be considered spouses for federal tax returns, they cannot take a tax benefit associated with a former spouse. Therefore, alimony payments made to a same-sex former spouse do not qualify as tax deductible income to the payor and cannot be categorized as alimony payments for federal tax purposes.

PROPERTY TRANSFERS: Because same-sex spouses and former spouses cannot be considered spouses for federal tax purposes, the exemption on capital gain realizations for transfers between spouses does not apply. Similarly, the transfers of retirement accounts allowed by QDRO between former spouses is not permitted between same-sex spouses. The inability to transfer retirement assets without tax implications can severely inhibit the ability to divide marital assets sensibly.

These limitations imposed by DOMA create extra considerations that must be made in dealing with same-sex divorce cases.

Click here to read Divorce and Taxes: Issue #1. Marital Status.