Should Shared Parenting be Presumptive?

The Minnesota House recently passed a shared parenting bill which has a presumption of at least 45.1% of the parenting time with each parent.  This presumption can be overcome by certain factors.  Attorney Robert Franklin has written an editorial supporting the bill and calling on the Senate and Governor to pass it as well.

A similar movement has been trying to get presumptions of shared physical custody passed in Massachusetts, and we reviewed these proposals in our series on Custody Reform.

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

Mr. Franklin indicates that breast-feeding can be worked around through pumping and storage as mother's who work often do.  However, this ignores part of the benefit of breast-feeding which is bonding with the mother.  This comment also ignores the immense pressure put on mothers of newborns.  Because of the need for newborns to have constant contact with both parents to form a bond with them, an equal parenting plan at this age would involve almost daily transitions.  Mr. Franklin expects these mothers to work, pump every two to three hours and accommodate multiple parenting transitions.  I'm not sure when he expects them to sleep?

I am in favor of recognizing the societal shift in parenting duties through greater presumptions for shared physical custody. However, there should also be some indication that this presumption does not mean equal time for children whose age would not favor equal time. I would suggest some tempering of the shared physical custody presumption to recognize the different needs of children at different ages.  The Shared Parenting brochure and the Model Parenting Plans provided by the Massachusetts courts both recognize this need to adjust the schedule and division of time as the child grows older.

Maybe the time has come to change the presumptions, but that doesn't mean we have to force those presumptions to fit every situation.  Presumptions of shared parenting with children of certain ages makes sense, but with children who are very young or who have special needs there needs to be consideration of how those factors affect their needs.

For more information check out these resources:

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


Child Custody Mediation
Collaborative Child Custody Resolution
Child Custody Litigation

What's in a Name? - The Problem with Labeling Parents "Custodial Parent" vs. "Visiting Parent"

It's difficult for people who haven't been involved in a divorce case to understand why divorcing spouses can be so mean to each other, especially when children are involved. But the emotions that couples experience when going through a divorce can be like riding a roller coaster. Many experts describe the emotional process of dealing with a divorce as similar to that of dealing with the death of a loved one, including all the same stages of grief: denial, anger, bargaining, depression and acceptance. When divorces involve children, these emotions are amplified by parent's fears that they will "lose" their children.

This is why the labels of "custodial parent" and "visiting parent" carry so much baggage with them, and can make people fight when they don't need to. When it comes to figuring out the best way that both parents can remain involved in the lives of their children, we believe it is more important for clients to focus on what the actual plan is, rather than the labels. We recently wrote a post about Parenting Plans, that focused on how parents can come up with a Parenting Plan as part of their divorce case.

But it is also important to know what significance the labels have. As the court moves away from the "custody vs. visitation" model towards a "parenting plan" model much of the old significance to these labels has been drained from them. For example, the Child Support Guidelines use to simply specify that the custodial parent pays the non-custodial parent the figure calculated by applying the Child Support Guidelines Worksheet. However, the new Massachusetts Child Support Guidelines clarify as follows:

"These guidelines recognize that children should enjoy parenting time with both parents to the greatest extent possible consistent with the children’s best interests.

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

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

This clarification obviates the need for using the label of custodial parent, because the amount of time the child spends with each parent in the parenting plan will define how we apply the guidelines.

Likewise, the title of "sole custody" vs. "joint custody" used to have definite legal significance regarding what standard would be applied when a parent wanted to remove the child from the Commonwealth and move to another state. The differences in the applicable standards was the weight that should be given to the benefit of the relocation to the parent seeking to move. In the case of "sole custody" the benefit to the relocating parent is given so much weight that it is a difficult burden to overcome, and in many cases relocation is allowed. In the case of "joint custody" the benefit to the relocating parent is not given as much weight, and the disruption to the non-moving parent's parenting time will often outweigh the benefits of the move, and so in many cases relocation is not allowed.

But recent court decisions have cut back on the significance of the labels in these cases as well, focusing more on the actual parenting time spent with the children by each parent to determine whether the children were truly living equally with both parents or not. In Altomare v. Altomare 77 Mass. App. Ct. 601 (2010) the Court held that the parenting time arrangement, which involved significantly more time with the Mother, was more important than the label of shared physical custody. The Court in Altomare looked past the "shared physical custody" label and indicated they would treat the case as a "sole physical custody" case for purpose of applying a removal standard, because that was what the parenting time actually reflected. See also Katzman v. Healy, Appeals Court of Massachusetts.No. 09-P-2341. (2010) in which the Appeals Court overturned a trial judge who, according to the appeals court, mixed the standards together in the case where the Mother's label was "sole physical" custodian, but also where Mother had significantly more parenting time with the children.

Because the history of these cases is important, we do not mean to imply or express the opinion that the labels have lost all legal meaning. However, it is clear that the Court is leaning away from these labels and towards an analysis of how the actual parenting time impacts the social, emotional and financial effects on children and their parents. If you are mired in a fight over labels, you should consider re-focusing your attention on the best Parenting Plan for your family and let the realities of that plan inform these other issues, rather than letting the cart lead the horse.

Prenups and Postnups

With the rise in divorce rates over the past fifty years, many couples are approaching marriage with a lot more caution than past generations. Some couples are choosing to enter into agreements that, in the case that their marriage did end in divorce, would specify how to divide the assets between the spouses. These agreements are commonly called "prenuptial agreements," or "prenups," but are also known as antenuptial agreements. In Massachusetts, prenuptial agreements are valid so long as:

• there is a full and fair disclosure of each individual's assets (you have to tell your soon-to-be spouse about everything that you have and vice-versa);
• the agreement is considered fair and reasonable both at the time that the agreement is entered into and at the time of the divorce (you can't take everything and leave your spouse financially dependent on the state); and
• there is no fraud or duress (you can't present a prenuptial agreement to your fiancée right before the wedding and say, "Sign this or we're not getting married.").

Additionally, courts look favorably on prenuptial agreements where both individuals are represented by their own attorneys.

Recently, the Supreme Judicial Court of Massachusetts recognized the validity of "postnuptial" or "marital agreements" as well. These "postnups" are very similar to "prenups," but are entered into after the individuals have been married. Reasons for entering into a "postnup" vary, but may make sense if one or both parties operate their own businesses and do not want to worry about the other spouse claiming an interest in the business if the parties were to get divorced.

Should you have any questions about "prenups" or "postnups," contact Attorney Justin L. Kelsey, or call 508.655.5980 to schedule a free one hour consultation.

Sources: M.G.L. c. 209 §25; §26; Ansin v. Craven-Ansin, 457 Mass. 283 (2010); and Osborne v. Osborne, 384 Mass. 591 (1981).

When can I (or will I) get re-married?

According to a Boston.com article a woman in Ohio learned via Facebook that her Husband had re-married, despite still being married to her. While the article suggests that there is some disagreement about whether or not the original marriage was valid, it's clear that the Husband should have waited to have the validity of his first marriage determined prior to getting married again. He has risked having his second marriage void, if the first is found to be valid.

This situation is not typical because most clients seeking to end a marriage state that they are not in a rush to get married again. However, according to the U.S. Census Bureau between 66 and 75% of people who get divorced get remarried. Many of these remarriages are less than one year after the divorce.

At the very least you are required to wait to get remarried until the day when you are officially divorced. In Massachusetts there is a waiting period (90 days for Complaints for Divorce, and 120 days for Joint Petitions) until a Divorce becomes final after the hearing. A Judgment of Divorce Nisi does not become absolute until 90 days later, and you are therefore technically still married during that waiting period. If you want your second marriage to be valid you must wait at least that long before getting remarried.

Although this may seem like an unusual problem, since many couples are now choosing long-term separation over divorce, the eventual divorce may occur well after the marriage has practically ended. In fact, the new relationship is more often the impetus behind the ending of a long-term separation. For a discussion on the other issues raised by long-term separation vs. divorce check out our previous post.

Are Gifts from my Family considered Income by the Family Court?

The following is a joint Blog Post prepared by Justin Kelsey, Esq. of Kelsey & Trask, P.C. (co-author of Scaling the Summit: A Family Law Blog) and Danielle G. Van Ess, Esq. of DGVE law, LLC (author of the Massachusetts, Wills, Trusts, and Estates blog).

The Judges in the Probate & Family Court have a lot of discretion to decide what constitutes income when the Court is considering child support or alimony.

According to M.G.L. c. 208 s. 34, the court can consider "amount and sources of income... and the opportunity of each for future acquisition of capital assets and income" when dividing property or awarding alimony. This language obviously leaves a lot of leeway for the court to consider all "sources of income" including potential "future" income.

Similarly, the Massachusetts Child Support Guidelines indicate that the court can consider "gross income from whatever source regardless of whether that income is recognized by the Internal Revenue Code or reported to the Internal Revenue Service or state Department of Revenue or other taxing authority." The specific list of possible income ends with "any other form of income or compensation not specifically itemized above." Just like with alimony, this broad language provides the Court with discretion to include family gifts as income, especially if the gifts are regular. For example, this could include the right to withdraw funds from an Irrevocable Life Insurance Trust (ILIT) established by parents to reduce estate tax liability and made available to their children as evidenced by regular Crummey notice letters.

The MA Appeals Court recently confirmed this in an unpublished decision holding that a Judge did not abuse his discretion by attributing income to a father based on family gifts, and using that attributed income to calculate child support. DiMambro v. DiMambro (Lawyers Weekly No. 82-281-10) (3 pages) (Appeals Court – Unpublished) (No. 09-P-1387) (Nov. 9, 2010).

“Future income” under the alimony statute, or “attributable income” under the child support guidelines may also include cash gifts such as annual gifts according to the gift tax exclusion amount, which is presently $13,000 per year per individual or $26,000 per year for a married couple to another person.

As the courts may consider all sources of income, particularly where one’s adult child is separated or divorcing it may be best to leave real property (such as a home or vacation home), gifts, and inheritances to one’s adult children in protected trusts rather than outright to attempt to ensure that those gifts will be preserved for one’s child and any grandchildren and not be subject to claims of the child’s ex-spouse. Parents of adult children should also be very cautious about putting their adult child’s name on their real property or bank accounts for purposes of convenience and assistance with management as those assets may become assets of the child as well and subject to claims in bankruptcy or divorce.

Given the Judge's broad discretion in this area, families should discuss gifts and the impact of those gifts with their attorneys to ensure they understand all the relevantthose gifts might have.

A Mental Health Public Service Announcement

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

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

What are the Advantages & Disadvantages of Mediation?

Mediation has many advantages over litigation. It is usually less expensive than negotiating your agreement through two attorneys and it is far less expensive than going to trial. Mediation can also help you avoid the backlog in the courts, allowing for a more expedient resolution.

In addition to these practical concerns, though, Mediation offers something that the Courts do not offer: the chance to resolve your case on your terms. If you are unable to settle your case in Court a Judge, essentially a stranger who will only meet you for a very limited period of time, will make major decisions about your life. Mediation is your opportunity to make these decisions together. After all, who knows what is better for you than you do.

On a related not, Mediation is also an excellent forum for solving issues unique to divorce that our legal system cannot adequately address. As an example, many couples will litigate who will get custody of the family pets. While most judges are not interested in talking about this, a good mediator will be able to give an appropriate amount of attention to an issue that the parties may feel is important.

Finally, privacy is an important concern for many of our clients. Court is a public forum. Understandably, many people feel uncomfortable talking about the breakdown of their marriage to a judge in a courtroom full of strangers. Mediation takes place in a more private and comforting environment, where the parties can set their own pace to better accommodate their own emotional and practical needs.

There are also disadvantages to mediation, though. For example, when there is a history of abuse between the parties, mediation often fails because the parties cannot reach the necessary level of trust to mediate their dispute amicably. Furthermore, there are no guarantees that mediation will result in an agreement, which could end up costing you more in the long run. You should honestly evaluate whether you and your spouse are willing to participate in an open process before entering into mediation

To learn more visit our website or call us to schedule a free 1-hour consultation.

What is Split Custody?

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

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

Bankruptcy Blog and other Resources

In addition to providing answers to commonly asked questions on our website, we also try to provide links to other resources where you may find further information. These links include the Court websites, other government websites, and organizations that we either belong to or may have further resources that could be useful to the public.

In addition we will often include in our Twitter accounts, links to blog posts from other blogs that we believe you might find interesting. You can click here to connect with Attorney Trask or Attorney Kelsey on twitter.

One particular resource that you should review if you are considering bankruptcy is the Bankruptcy Law Network, where we often find great blog posts on numerous questions involving bankruptcies. Here are just a few examples:

San Diego: New Ruling Allows Student Loans to be Discharged in Chapter 13! http://ff.im/-4nJBn

How Do I Find a Good Deal on a Secured Credit Card? http://ff.im/-4FnH5

Do I have to be a citizen to file a bankruptcy case? http://ff.im/-4hCit

How to Value a Car for Chapter 13 Plan “Secured Claim” Purposes http://ff.im/-4a82w

How Long Will My Chapter 7 Take? http://ff.im/-46Odg

What Happens If A Creditor Contacts Me After My Bankruptcy? http://ff.im/-3LIbV

“Stealth” Plan Provisions: Confirmation of Chapter 13 Plan Did Not Alter Domestic Support Obligation http://ff.im/-3uuIL

What happens to Social Security payments in a Divorce?

A Divorce actually has very little effect on your rights in your spouse's/ex-spouse's Social Security benefits.

So long as the marriage lasted ten years, a spouse who has not worked or who has low earnings can be entitled to as much as one-half of the retired worker’s full benefit.

If you are eligible for both your own retirement benefits and for benefits as a spouse/ex-spouse, Social Security always pays your own benefits first. If your share of your spouse's/ex-spouse's benefits are higher than your retirement benefits, you will get a combination of benefits equaling the higher spouse benefit.

The amount of your spouses/ex-spouses benefit that you receive has no effect on the amount of benefits that they receive.

To see a more complete explanation visit this helpful Social Security website.

Your Mother Should Have Told You: Don't Bring Beer to Court

On March 21, a New York man facing a charge of driving a motor vehicle under the influence of alcohol (DUI in New York, OUI in Massachusetts) showed up intoxicated to a New York court for a hearing carrying an open can of beer, with four more cans in a bag. While this might be snickered at and mentally filed away under the "dumb guys in crime" category, it does highlight the issue of alcoholism and how it can contribute to a myriad of poor life decisions.

Alcoholism is a serious issue in many family court cases as well. Alcoholism can be a source of wasting assets, a reason one party has trouble supporting themselves, or worst of all, a parental fitness issue. Alcohol use and abuse is not only difficult to track (it won't show up on drug tests days later), it can also be difficult to prove and control.

But there are solutions for dealing with these issues in court, including the use of Breathalyzer technology and support programs. And oftentimes alcohol abuse can be proven through receipts and the pure volume of liquor being purchased. If alcoholism is an issue in your case make sure you consult with an attorney who is familiar with handling this type of issue.

In addition, if you or someone you know is struggling with an alcohol problem, we at Kelsey & Trask encourage you to seek help, whether through enrollment in a program such as Alcoholics Anonymous or otherwise.

Press Release: Can Technology Improve How People Get Divorced?

Press Release from Kelsey & Trask, P.C. - April 26, 2012:

CAN TECHNOLOGY IMPROVE HOW PEOPLE GET DIVORCED? 

 Framingham Attorneys providing iPads to their Divorce Clients

Social media and technology have changed how we live and connect socially in many ways, and these changes extend to how we break up as well. Even if you're not a member of Second Life, you likely have a second online life made up of your Facebook posts, your Pinterest pictures and your Tweets. So what happens when you get divorced? When do you change your relationship status? Should you change your passwords? Is it safe to use the home computer to communicate with your divorce attorney?

If you get divorced, you’ll have to face some of the ways that your online life complicates the break-up. But technology doesn’t just create problems in a divorce; the newest technologies can also be used to solve these problems. At least one innovative firm, Kelsey & Trask, P.C. in Framingham, Massachusetts, is helping divorcing clients manage their cases by providing them with an iPad.

Many attorneys are now using iPads in their law practices, which helps them respond to clients faster, present cases to juries in an attractive and organized way and work from anywhere (even while waiting in Court on a case). The next logical step is to give clients that same convenience.

Kelsey & Trask, P.C. describes their client-use iPads as Personal Divorce Assistants:

“A Personal Divorce Assistant is an iPad tablet configured to provide you with a higher level of service and connectivity to your divorce attorney without having to carry around boxes of paper… Using the Personal Divorce Assistant simplifies the process for our clients by having all of their divorce information in one place, including their files, documents, resources, information, and communications.”

Kelsey & Trask, P.C. is a Massachusetts law firm that practices primarily in the areas of Family Law and Bankruptcy. They also have an iPhone app for calculating child support in Massachusetts and online calculators for alimony and parenting plans.

###

If you would like more information about this topic, or to schedule an interview with Attorney Justin Kelsey, please call him at 508.655.5980 or e-mail Attorney Kelsey.

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

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


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


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


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


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


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

Latest Update on Massachusetts Alimony Reform Act of 2011

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

What does the Judge Think of your Petty Arguments?

One Judge in Canada may have gone too far in admitting what he really thinks. A recent Time article highlights the lengthy decision of a family-court Judge in Ontario who called out a particularly vindictive couple for their abhorrent behavior. Although the decision was probably well-deserved the Judge may have let his frustration with the couple distract from the typical judicial demeanor.

Just because other Judges don't typically write decisions so bluntly, doesn't mean they don't have the same thoughts about some of their cases. In fact, having been involved in a number of cases which included unnecessarily petty behavior by the litigants I am sure the Judges in those instances wished they could write a decision like this.

If common sense doesn't make you stop your vindictive or angry responses in a divorce case, then at least try to remember that the Judge will hear about this behavior and it can only hurt your chances of convincing the Judge of the merits of your case.