A Trend in Diamonds?... Have you considered a Prenup?

According to a recent post by a jeweler that specializes in diamond rings, Brown Diamond Rings may be the next big trend. Upon hearing this, I was immediately reminded of a scene from one of my favorite movies, Beautiful Girls, in which a guy tries to explain to his friends the brown diamond ring he bought for a girl who just broke up with him:

• Kev: It's a trend in diamonds. Champagne. It's a nice stone.
• Willie: Yeah, no, I heard about this. It's a new trend in the diamond trade, they're trying to create a new market.
• Tommy: Oh, right, right. yeah. They were callin' 'em "piss", but they weren't moving any units. What's with you, man?
• Paul: What?
• Tommy: Well, how much you pay for this brown rock?
• Paul: What difference does it make?
• Tommy: Diamonds are supposed to be colorless! You go out and buy a colored diamond for a girl you're not even seeing, man, you must be eating retard sandwiches again.

So, if you're considering following the trend, and buying a brown diamond engagement ring, we wish you the best of luck. But maybe you should also check out some information on Prenuptial Agreements.

Just like a brown diamond, a prenuptial may not be traditional or romantic. But at least a prenuptial agreement can help both you and your future spouse ensure that you are clear and up front about your plans for separate and joint finances. Even if you don't sign a prenuptial agreement, the success of your marriage may be dependent on your willingness to be open and honest with each other about finances. If you have certain expectations about how you will share finances it is a good idea to have those discussions prior to getting married. As part of preparing a Prenuptial Agreement one of the requirements is full financial disclosure.

Communication is the key to any good relationship. So, if you don't want him to buy you a brown rock, make sure you communicate.

A Tree Grows in your Office: A Metaphor for Divorce

We all know that to have a successful marriage, the relationship has to be nurtured and fed.  Spouses who do not pay attention to the needs of their relationship are doomed to grow apart instead of growing together.  But just because a marriage withers on the vine, doesn't mean that a divorce has to result in sour grapes.

Many of the problems that prevent people from having a successful divorce stem from the false assumption that divorce is an endpoint.

Divorce, like marriage, is a relationship.  Anyone who has been through a divorce can dispel the notion that a divorce is just an event, begun one day and over the next.  Divorce is a process, that takes time, requires patience, and still involves a relationship between spouses.  And when spouses have children together, that relationship doesn't end when the divorce becomes final, it continues for graduations, weddings, grandchildren and more.

Divorce, like marriage, is a relationship. 

Both at my firm and in many of the professional organizations I belong to, we are often searching for better ways to explain divorce to our clients.  If you begin by asking questions, you learn a lot about the potential client, but they don't learn much about you.  If you begin by trying to explain "processes" clients learn how they can get divorced, but not how to get divorced well.  Maybe we need a new model, a story that explains how a potential client can get from the end of their marriage to the beginning of the next stage of their life.

That story, like many stories, starts with a seed.

Now you might think that a bitter pill would be a better metaphor for the end of a marriage, but trust me, a seed is better.  Seeds have both a before and after, but you can't necessarily tell much about either of those places just by looking at the seed itself.

Many divorcing clients appear the same at the moment they enter my office, determined but a bit confused, having goals but also needing direction.  Like a seed, their current state is the result of a relationship that came before.   That relationship determines what kind of seed it is, but what the seed will grow into is not only controlled by its history.  It also matters where that seed landed, and how it is nurtured.

The organic process of how divorce cases proceed from start to finish, is similar in many ways to the growth of a tree from a seed.  Our goal is to develop a strong tree, able to withstand future storms.  But growth and strength don't happen overnight.  In fact, usually the process is too slow to be seen by the naked eye, but just because the process is slow doesn't mean the tree is standing still.

As one of my mentors used to say, settlement only happens when the case is ripe.  Just like the organic growth of a tree, settlement requires the addition of necessary ingredients to blossom.  A major component of settlement is time, but that's not enough.  You may also have to shine light on parts of a client's life and marriage that they'd rather leave dark.  But, in the end, the only way to wash away the dirt and create strength from vulnerability is to combine all of these elements to feed the next stages of life in a way that is balanced and leaves room for further growth.

And just as proper nurturing, light and time can lead to a healthy and strong future, ignoring any of these key elements leads to stunted growth.  Proper counsel for divorce clients requires paying attention to these needs for our clients, and as corny as it sounds helping them choose what kind of tree they want to be, and where they want to grow.

Mediation is often represented as a single tree, or leaf.  I'm not sure how so many mediators came to choose this as their symbol, but I think it fits.  Mediation doesn't take place among the forest of other divorces, or in the public eye of court.  Instead it takes place in the mediators office, away from other divorcing spouses and their situations.

A hallmark of mediation is about letting each set of clients come to a solution that they agree works best for their unique family.  Though comparisons may happen when they leave the mediators office, mediation doesn't require a comparison to how other people grew their seed, it's only about those two people and how they want to resolve their problems.

When two spouses are both independent and have the ability to grow their strength from within, then they only need the gentle nurturing of a mediator to reach a successful divorce.

But sometimes, clients need more:

Collaborative Divorce is about seeing the forest through the trees.  Similar to mediation, it takes place outside the public court forum.  But it is different than mediation, in that each client is provided with more support to help them grow within the protection of a professional forest.

Collaborative divorce is often referred to as a team approach to divorce, but team implies everyone working together all of the time (and billing the clients for all that time).  In reality, collaborative divorce is more like a set of gardening tools.  Each tool or person has a role that helps the spouses grow the strength needed to support their own forest after divorce.  Attorneys have different skills and training than coaches and financial planners.  Each team members provides different nurturing, or strengthening skills to allow both spouses to grow together and coexist, even if they didn't start out in equal soil.

Collaborative divorce lends itself well to complicated issues, or imbalances that might prevent successful mediation because the interdisciplinary nature of the different professionals allows them to fulfill the needs of clients who wouldn't have been able to grow to the same heights on their own in a mediation.  And since it also takes place far from the court house, the reflection of other groves doesn't block sunlight from this forest, allowing each tree to grow with only the restrictions they place on themselves.

But what if mediation and collaborative divorce are not options.  Is all hope lost?  Will my tree be cut down before it reaches it's full potential?  I'm not going to lie; it's harder to find common ground in the court process.  But that doesn't mean it's impossible:

Litigation takes place inside and outside of the courthouse.  While litigation requires that you always track the shadow of the law, you don't have to let it block out all the light.

Court is not an organic process.  It feels as unnatural as the sound-proofed walls that lined the courtrooms.  The litigation process is designed to collect and reflect enough of the natural light of your family, to allow you to survive, but not necessarily thrive.  Like a plant that's kept inside, it's not your natural environment, but with the right help it won't kill you.  Your growth will be restricted based on the rules of the court, and still might result in settlement but you will have to work harder to make that happen.

In some ways this means that the attorney you choose to help you in court is even more important than who you might choose for mediation or collaborative divorce.  If you choose a litigator who only knows the path to trial, then you will most certainly be firmly rooted in that path, and will have to take your chances with the Judge.  But if you choose a lawyer with the experience and drive to settle cases, they then will help you see the many paths that exist, even when you're limited to a particular landscape.  It might be harder to get settlement to ripen in the harsh unnatural light of court, but if the case is nurtured and prepared properly it is still possible.

Sustainable Growth

If you'll allow me one final stretch of the metaphor, remember that personal growth does not end at the end of a marriage, nor does it end when a client receives their Judgment of Divorce absolute. Proper care of a case requires consideration of how future growth will be supported, whether it can be made self-sustaining and whether the path you've provided will allow for sustainable growth for both the clients and their seeds.

Divorce is not an easy or happy subject, but like any transition in life it can be viewed as an end or a beginning.  Ending cases shouldn't be the goal.  The goal should be helping clients understand how to stretch their branches towards the light of better days.

What is Parental Alienation?

Put simply, Parental Alienation is the term used to describe when one parent turns a child against the other parent. However, Parental Alienation is anything but simple.

Even the issue of how to define Parental Alienation is hotly contested. As reported in a recent AP article, Psychiatric experts asses parental alienation, the American Psychiatric Association is debating whether or not to include "parental alienation syndrome" as a mental disorder in its updated catalog of disorders. The debate centers around whether the concept is real and all to common or whether it is overused. For example, according to some domestic violence advocates parental alienation is a concept used by abusers to place blame on the other parent and take focus off the abuse.

Regardless of whether you believe parental alienation should be recognized as a mental disorder, it is obvious that any activity intended to turn your child against their other parent is not in the best interest of the child. Even worse, it is not even an effective tactic because any alienating comments to your child are more likely to hurt you in a custody case than help you. As one Judge in the Plymouth Probate & Family Court is fond of stating: "I award custody of children to the parent best able to share with the other parent."

Avoiding parental alienation is one of the reasons that all divorcing parents in Massachusetts are required to take part in the Parents Apart Program, which is designed to inform parents about the difficulties children face in a divorce and how to avoid forcing that conflict on your children.

In addition, at Kelsey & Trask, P.C. we include in the majority of our Agreements relating to children the following language:

"Both Parties are prohibited from discussing (and from allowing others to discuss), in any manner, any Court proceedings with or within earshot of the children.

Both parties are prohibited from disparaging either parent and/or their significant others (and from allowing others to disparage either parent and/or their significant others) with or within earshot of the children."

Of course, putting this in an Agreement doesn't necessarily prevent parents from making comments or taking actions that could alienate the children from the other parent. But at least adding this provision is one more reminder to parents that they shouldn't involve their children in the divorce process or expect their children to be able to handle discussions about adult emotions due to the divorce. In the end it's up to parents to put their children's well-being above their desire to hurt their ex-spouse. As you will hear many divorce attorneys and judges ask: Do you love your kids more than you hate your ex?

Legal Differences Between Children Born to Married and Unmarried Parents

Last week, a colleague in North Carolina wrote about the different legal treatment in North Carolina between children born to married parents and "illegitimate" children (children not born to married parents -- many of our laws have not been updated since the dawn of the politically correct era, and label such children as "illegitimate" or "bastards," reflecting antiquated prejudices and stigmas against such children). The purpose of this post is to describe the ways treatment of such children in Massachusetts differs in some instances and is similar in others:

• Illegitimate children may not inherit property from their father (except through a Last Will & Testament, voluntary acknowledgment of paternity, or an adjudication of paternity);
• Illegitimate children are not eligible for survivor's Social Security Benefits as a result of the death of the child's father (42 U.S.C. § 416(h)(2)(A); M.G.L. c. 190 § 5);
• Illegitimate children may sue for wrongful death of their deceased father (Levy v. Louisiana, 391 U.S. 68 (1968));
• In Massachusetts, the father of an illegitimate child may NOT have his parental rights terminated for the father's failure to legitimate the child (M.G.L. c. 119 § 26(4)) M.G.L. c. 210 § 3);
• The father of an illegitimate child does not have the same notice rights in an adoption proceeding involving the illegitimate child, unless the father has been adjudicated to be the father, but even if he has not been so adjudicated he may still file a parental responsibility claim to obtain the same notice rights (M.G.L. c. 210 § 4A);
• The birth certificate of a child who is legitimated will be changed to show the father's name (M.G.L. c. 46 § 13);
• Procedures for the establishment of child support are abbreviated. If a child is born out of wedlock, child support is established in paternity proceedings. If a child is born to married parents, child support is established during divorce proceedings.

Additionally, in Massachusetts there is a difference in the treatment of child support between "illegitimate" children and children born of a marriage. For "illegitimate" children, child support may be sought from the time of the child's birth. For children born of a marriage, child support may only be sought in a divorce dating back to the date of filing or date or service of the complaint for divorce.

When does Alimony End?

Until 2011, there was no formula enacted or endorsed by the Massachusetts Legislature or the Courts for the calculation of duration of alimony. However, on September 26, 2011, Governor Deval Patrick signed into law The Alimony Reform Act of 2011, which became effective on March 1, 2012. The act provides for multiple types of alimony, and for maximum amounts and duration of alimony.

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

General Term Alimony Ends Upon:

• Remarriage of the recipient;
• Death of the recipient;
• Death of the payor (though the court may order life insurance or reasonable security for payment of sums due to the recipient in the event of the payor's death during the alimony term);
• Except when the court finds that deviation is warranted, upon the expiration of the duration formula calculated below;
• Upon the cohabitation of the recipient spouse with another person for a continuous period of at least three months (may also result in suspension or reduction instead of termination; 
• Upon the payor attaining the full retirement age when he or she is eligible for the old-age retirement benefit under the United States Old-Age, Disability, and Survivors Insurance Act, 42 U.S.C. 416.

When duration of marriage is 20 years or less, general term alimony shall terminate no later than a date certain in accordance with durational limits set forth below:

• Marriage of 5 years or less, general term alimony shall be no greater than one-half the number of months of the marriage.
• Marriage of 10 years or less, but more than 5 years, general term alimony shall be no greater than 60 per cent of the number of months of the marriage.
• Marriage of 15 years or less, but more than 10 years, general term alimony shall be no greater than 70 per cent of the number of months of the marriage.
• If the duration of marriage is 20 years or less, but more than 15 years, general term alimony shall be no greater than 80 per cent of the number of months of the marriage.
• The court shall have discretion to order alimony for an indefinite length of time for marriages longer than 20 years.

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

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

Even if a duration is set in an order, most of the time alimony is merged into the Divorce Agreement, which means that the amount and duration of alimony can be changed at a later date if either party files a Complaint for Modification and is able to demonstrate to the Court a significant material change in circumstances that warrants a change in the order.

Are you Celebrating Valentine's Day or looking for a Divorce Attorney?

I don't know why exactly, but it is the case every year that we get busier with divorce cases around Valentine's Day. According to the New York Post and Avvo.com searches for divorce attorneys rise by as much as 40% around Valentine's day. Maybe this is because the whole world seems to be saturated with sickening sweet messages for people that are "in love." Or maybe it's the numerous reminders for couples that used to enjoy Valentine's day that they no longer have reason to celebrate.

Regardless of the reason, if you are part of that 40%, consider giving yourself a Valentine's Day gift. Even if you are considering the intimidating process of starting a Divorce, remember that litigation is not the only way. Other options, such as Mediation, could be faster or cheaper. To read more about the advantages of Mediation check out these previous posts:

What are the Advantages & Disadvantages of Mediation?
Why Are More Couples Choosing Divorce Mediation?
Dramatic Impact of Mediation on Children of Divorce
Another Benefit of Mediation: No Waiting in Court

New State Median Family Income Figures Released

The United States Department of Justice has released the Census Bureau State Median Family Income By Family Size figures for means test calculations on Bankruptcy Cases filed on or after November 1, 2009. The new figures are available on the U.S. Trustee's website here.

These figures apply only to cases filed on or after November 1, 2009.

For Massachusetts, the new State Median Family Income figures are as follows:

Family of 1: $53,505
Family of 2: $69,451
Family of 3: $82,591
Family of 4*: $99,648

*Add $6,900 for each individual member in excess of 4.

Try our Chapter 7 Means Test Calculator by clicking here or on your mobile device by clicking here, now updated with a NEW feature that allows you to choose whether to use the old or new Median Family Income figures.

For additional questions regarding the new State Median Family Income figures, or any questions regarding Bankruptcy or the Chapter 7 Means Test, please contact Attorney Matthew Trask at (508) 655-5980.

Can we hire one attorney to represent us both in our Divorce?

Don't believe everything you see in the movies. In the popular teen pregnancy flick Juno the adopting parents end up getting divorced and the Husband states "I called Gerta Rauss. She says she can represent both of us. They call it 'collaborative divorce.' It’s apparently all the rage right now."

Although, collaborative law is "all the rage" right now, it does not involve one lawyer representing both parties.

It is not ethical or practical for a lawyer to represent both parties in a Divorce, whether through collaborative law or litigation

In fact, Rule 1.7 of the Massachusetts Rules of Professional Conduct prohibits a lawyer from representing a client if that representation will be directly adverse to another client unless the lawyer reasonably believes the representation will not adversely affect the relationship with the other client AND each client consents after consultation.

Although both clients might consent, it is not reasonable to believe that a lawyer can represent two adverse clients at the same time in the same action and look out for both of their interests.

It is possible to have a lawyer act as a mediator but in that case the lawyer does not represent either party and is not looking out for either of your individual interests. It is also possible to have only one party hire an attorney, but it is important for the other party to recognize that that attorney is not looking out for their interests too.

If you'd like to learn more about hiring an attorney you can schedule a Free One Hour Consultation here.

You can also read a hypothetical example of a Collaborative Law Divorce on our blog here.

Thanks to Michelle Bernier-Capaldo for suggesting this question.

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

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

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

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

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

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

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

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

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

To reprint copy and past the following code:

<a href='http://familylaw.kelseytrask.com/blogimages/AlimonyModFlowchart2.jpg'><img style='display:block; margin:0px auto 10px; text-align:center;cursor:pointer; cursor:hand;width: 500px; height: 1850px; border-width:0px;' src='http://familylaw.kelseytrask.com/blogimages/AlimonyModFlowchart2sm.jpg' alt='' title='Click for Full Graphic'></a>

Click here for more information about Modifications in Massachusetts.

Divorce Court isn't Fair. Get over it.

In many divorce cases that end up litigation, at least one of the spouses is not doing something they are supposed to do. A spouse who refuses to abide by court orders or the discovery rules can delay the process and drive up the costs for both parties. These situations often lead to the following exchange with clients, both during and after their divorce:

Client: My ex is not making a payment that they agreed to make, and which was included in the court order.

Attorney: Have you discussed it with them?

Client: Yes, but they still refuse.

Attorney: Okay, if you would like us to help with this issue, then we will start with a letter or phone call indicating that the payment should be made immediately. If they don't respond by the deadline then we can file a Complaint for Contempt. If there is an emergency then we can request a quick hearing, but that will require an extra court appearance. Otherwise we will have a court hearing in about one month. We will have to serve them with the summons, and we can request those costs and attorneys fees be paid as part of the Contempt order, but there is no guarantee the Judge will include those sanctions.

Client: Why should I have to pay you to do this? Why should I have to pay to serve them? This is something they were supposed to do.

Unfortunately, none of the answers that I can provide to these questions are satisfying because the client is right: the Client shouldn't have to pay to force the opposing party to do the right thing. It's not fair. But life isn't fair. 

Many clients are just voicing their frustration when they say this, and we make every effort to hear our client's frustration so we can help. However, sometimes clients truly don't want to have to pay their attorney or a constable to enforce the court order. The sheriff or constable who serves the Complaint for Contempt, and the lawyer who represents the client are not responsible for the opposing party's behavior and they should both be paid for their time and services. In a perfect world, the party violating the agreement should bear any costs of their wrongdoing. But this is not a perfect world, and court orders, if not enforced, are simply pieces of paper that don't make people do anything.

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

I'm Married but my Husband is not the Father of my Child; What Now?

In Massachusetts there is a presumption that a child born of a woman who is married, or was married in the last three hundred days before the child's birth, is the child of that woman's husband. This is a legal presumption and can be rebutted by evidence.

If you are filing a Paternity Complaint and the mother was married at the time of the child's birth, or in the last three hundred days before the child's birth, then the Court requires that you use a different form and that you include the Husband as a Defendant in the action. Usually a DNA test will be performed to confirm that the Husband is not the Father (which is typically sufficient evidence to rebut the presumption) and then the action can proceed similar to any other Paternity action.

This is apparently not the case in every state, as evidenced by a recent case in Michigan where a biological Father was denied parental rights because his child was born to a married couple, and Michigan law designated the Husband as the Father. According to this ABA article, the only way to overcome this presumption in Michigan is in a dispute between the Husband and Wife, so the Father had no standing. I tend to agree with the Father's lawyer who was quoted as claiming this ruling was "absurd."

A Picture is Worth a Thousand Words, and the Date, and the Time, and your Exact GPS Location!

Warning: this blog is going to show you information that can be used for good or evil.

If you are taking pictures with your phone (and even some cameras) and then posting those pictures on the internet, you are sharing more than just the picture. You are probably also sharing the date and time the picture was taken, the type of phone you have, what software you are using, and scariest of all - the exact location where the picture was taken.

Do I have your attention now?

Let me show you how it works:

This morning I took the above picture with my IPhone. I edited the picture on my computer and posted it here. Even after editing the picture, however, the picture retains certain embedded information.

To see this additional information you don't have to be a super smart computer hacker. On a PC, simply right-click the picture and select properties:

Now click on the details tab and immediately you will see some information that I might not have intended to share, such as the date and time the photo was taken:

When you scroll down and view the other details you see that you can also discovery I took this photo with an Apple iPhone 4. And although I might want you to know that I have an iPhone 4 so you can be super jealous, I probably don't want you to know the next thing you can discover if you keep scrolling down:

As shown in the image above, the details saved in the embedded data of this picture include the GPS Latitude and Longitude where it was taken. How did they get there? iPhones, as a "convenient feature," geo-tag all photos with this information. When you post the picture online, these details will often still remain with the image. This means that someone with minimal computer skills can figure out exactly where you were when you took the picture.

If I take the GPS Latitude and Longitude displayed in the above image and enter them into the FCC's online converter I get the following decimal results: Lat 42.288166, Long 71.333667. If I then enter these figures into an online address converter, I am told that this picture was taken at: 150 E Central St, Natick, MA 01760, USA.

Although not exact this approximation is too close for comfort (the picture was actually taken at my office located at 154 E. Central St., Natick, MA 01760).

By posting this information I realize that I am showing potential stalkers how to get information on their victims. However, I am hopeful that the majority of our readers will benefit from this information by protecting themselves rather than using it against others.

There are numerous ways in which this information could be used by attorneys or litigants in divorce cases to prove the whereabouts of somebody if those issues are in question. And the potential issues this raises in cases involving Domestic Violence are painfully obvious.

So here is the valuable TIP: Be careful what you share online, and always make sure you consider not just the information you intend to share but what information you might also be sharing inadvertently. Most phones will allow you to disable the geo-tagging feature. If you have an iPhone you can disable this feature as described in this eHow article.

Is a Friendly Divorce Possible?

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

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

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

Mediated Divorce
Mediation Pros and Cons

Collaborative Divorce
Collaborative Pros and Cons

Family Law Blogs Directory and other Useful Tidbits

We'd like to thank J. Benjamin Stevens for adding us to his Directory of State-Specific Family Law Blogs. If you follow our blog and are looking for information that might be more specific to your state then check out the directory.

In addition, if you're contemplating divorce or currently involved in a divorce, there is some other great advice to be found on Attorney Stevens' website, including the latest post "Tips to Minimize the Difficulties of Divorce".

When does a parent qualify for Retroactive Child Support?

In some instances a parent is not or has not been paying the amount of child support that they should be paying, and these circumstances can lead to different results depending on the history of the case.

The first question that must be answered is whether or not there is a current order in place.

Retroactive Support in Cases without Current Child Support Orders:

If child support has never before been ordered, then in Massachusetts whether retroactive support will be due is dependent on whether or not the child in question was born out of wedlock.

In Massachusetts divorce cases there is a presumption that spouses have been supporting each other and their children and therefore child support can only be requested in a divorce case after the date of service of the Complaint for Divorce unless the parties voluntarily agree otherwise.  For example, sometimes parties in a Mediation or Collaborative negotiation will agree to a voluntary temporary child support during the negotiation but this agreement is not enforceable in court.

In cases in Massachusetts where a child was born out of wedlock (usually referred to as Paternity cases), retroactive child support may be owed.  If a parent has not been supporting their child and not living with the child, they may owe support all the way back to the child's birth.  If a case isn't filed until the child is a teenager, this can be a complicated calculation requiring years of pay information, and can result in significant child support arrears.

Retroactive Support in Cases with Current Child Support Orders:

If child support has been ordered, then support may be due back to the date of the order if the parent has not been making the required payments.

A Complaint for Contempt is the action by which you can request that the Court make a finding and issue sanctions for failure of one party to meet the obligations and requirements of a Court Order or Judgment. To succeed on a Complaint for Contempt you must prove two things: first you must prove that there has been a "clear and unambiguous" order or judgment and second you must prove that the other party "knowingly violated" the order.  In addition, in order to get sanctions for failure to make payments, you may also have to prove that the Defendant had the ability to pay.

If you can prove that support hasn't been paid as required by the order then support payments will be owed retroactively to the date of the court order, pursuant to that order.  Interest and sanctions may also be applied.

If you are seeking to have a payment different than a previous child support order, then in Massachusetts you must file a Complaint for Modification.

A Complaint for Modification is the action by which you can request that the Court make a change to the past Court Judgments. To succeed on a Complaint for Modification you must prove two things: first you must prove that there has been a "significant material change in circumstances;" and second you must prove that the change in circumstances warrants a change in the Order.

Although an event may occur which warrants a change in child support, for example the payor has increased their pay significantly, any support change will not be effective on the date that the event occurred.  In Massachusetts, changes in child support can only be retroactive to the date of service of the Complaint for Modification.  Therefore, if you suspect that a change is necessary the sooner you file and serve the Complaint for Modification, the better.

In addition, many people will file a Motion for Temporary Orders on the new Complaint for Modification. The Courts typically did not allow a change prior to settlement or a trial unless there was an emergency that warranted a change. If you request an immediate change via Motion you should also file an Affidavit of Emergency to inform the Court why an immediate change is necessary.

PRACTICE TIP - However, at a recent seminar some Massachusetts Judges indicated that they are more willing to rule on Motions for Temporary Orders on Complaints for Modification than they have been in the past.  This is because the Court Calendars have become significantly backed up and Judges recognize that delaying a change until trial could result in large retroactive orders.  The injustice of these large retroactive orders could convince a Judge that a temporary change is necessary and even if denied, you can point later to the fact that you tried to avoid the retroactivity issue.

New, Improved and on-line: kelseytrask.com

After a nearly month of planning, programing, coding, compiling, and complaining (not to mention more than a few late nights), the new and improved website for Kelsey & Trask, P.C. is up and running. Our attorneys, Justin L. Kelsey and Matthew P. Trask, are proud of our new website and feel it represents the true face and personality of our firm.

We have purposefully posted a large amount of content at http://www.kelseytrask.com. We want our website to be a resource for you, not just a signpost or an advertisement for our firm. We encourage you to take a look around and learn more about us, the law, how we practice, and the ways we can help you or your business in these less-than-certain times.

All of the content in our page regarding divorce, paternity, child support, bankruptcy and civil practice are presented in a simple, intuitive question-and-answer format. We have resources for both attorneys and the public, including calculators for the Massachusetts Child Support Guidelines, the Stevenson-Kelsey Spousal Support Calculator (as seen in TurboLaw), and a Means Test Calculator for bankruptcy cases filed in the United States Bankruptcy Court, District of Massachusetts.

Finally, we hope that our site shows that despite the problems some of us might be facing, there is help out there...don't go alone.

Are there restrictions on what I can name my baby?

Although a recent LegalBlogWatch.com article discusses the limitations that some states place on baby names, in Massachusetts there are no restrictions in the general laws that limit parents' rights to name their child.

M.G.L. c. 46 s 1 prohibits the recording of a father's information in the birth record of a child of unwed parents "except as provided in section 2 of chapter 209C where paternity has been acknowledged or adjudicated under the laws of the commonwealth or under the law of any other jurisdiction." This does not, however, restrict the right of the Mother to use the Father's surname, only restricts her ability to list him as the Father without his agreement.

There may be administrative limitations such as limiting the full name to 40 characters for recording in the Massachusetts electronic data system (as reported in a law review article, Naming Baby: The Constitutional Dimensions of Parental Naming Rights). It is also likely that administrative officials might refuse to record names that contain obscenities or ideograms. The above referenced law review article discusses the constitutionality of such restrictions.

In the event parents disagree about the name of a child, the court may also become involved. MassLegalServices.org provides information about Petitions for Name Change including a summary of what happens when parents disagree. The short version is that the court will decide what name is in the child's bester interest taking into account factors such as the length of time the child has used a previous name, the age of the child, and any potential difficulties or embarrassment a current or proposed name may present.

Is Divorce different for Men & Women?

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

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

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

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

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

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

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

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

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

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

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

What is the Automatic Restraining Order (Supplemental Probate Court Rule 411)?

In addition to beginning the litigation process, immediately upon the filing of a Complaint for Divorce, the Plaintiff (person who filed the Complaint) is restrained from taking specific actions with respect to their assets and liabilities. Along with the Summons the Court will provide to the Plaintiff, a Notice describing the Rule 411 Automatic Restraining Order. A sample Notice describing the Rule 411 Automatic Restraining Order is available here.

Upon the service of the Complaint and Summons on the other party (the Defendant), they too become restrained by Rule 411. Generally Rule 411 prohibits either party from
a. selling, hiding, encumbering or disposing of any personal property or real property in which either of you have an interest (except for in the case of specific exceptions),
b. incurring any further debt that would burden the credit of the other spouse (such as making charges on joint credit cards),
c. changing the beneficiary designation on any life insurance policy, pension or investment accounts, or
d. doing anything that changes your spouse or your children's coverage under medical, dental, life, automobile or disability insurance.

There are exceptions to Rule 411 which you should discuss with your attorney. Do not violate the Automatic Restraining Order or the Court may, and most likely will, order you to undo whatever action you took and sanction you for violating the Restraining Order.