How are Charitable Contributions treated in a Divorce?

In any divorce case in Massachusetts, whether contested or uncontested, you are required by Massachusetts Supplemental Probate Court Rule 401 to file a Financial Statement.

The form of the financial statement which each party must complete is dependent upon his or her income. A party whose income equal or exceeds $75,000.00 must complete the long form financial statement. A party whose income is less than $75,000.00 must complete the short form financial statement.

The long form is 9 pages long and requires more details than the 4-page short form.  The long form includes a line-item for Charitable Contributions deducted directly from your paycheck (on page 2) and a line-item for Charitable Contributions paid as part of your regular Weekly Expenses (on page 4).  If you make regular contributions that are deducted from your pay then those should be entered on page 2.  If you make regular contributions from your take-home income we suggest that you average those contributions over a year, divide by 52 and enter them on page 4.

Even if you are required to fill out the short form you can include any such charitable contributions in the "other" line-items on page 2.

Unless these amounts are significant, they are unlikely to have a major impact on your divorce case.  If, however, you are claiming that you do not have enough money to pay your household bills when arguing for or against support, your ability to pay for non-essential items such as charitable contributions could be used to argue that you have a reduced need for support.  I seldom see this issue raised however, as the amounts are usually minimal and even divorce attorneys are not likely to argue that charitable giving should be punished.

For more information about divorce contact Attorney Kelsey or call 508.655.5980.

Also, if reading this post put you in a charitable mood we invite you to donate to the One-Mission Buzz-Off, which is a charity to benefit Children's Hospital Boston and the vital programs and services they provide to help kids beat cancer.  In support of this charity Attorney Kelsey will GO BALD on June 3, 2012 at their annual Buzz-Off.

Best Valentine's Day Gift: A Court Ordered Trip to Red Lobster

NBC Miami is reporting that a Judge in Florida has ordered a husband to take his wife on a date.  The Judge ruled that a fight between the couple over the man forgetting his wife's birthday did not result in serious enough violence to warrant further court action.  Although, the Judge indicated he would not normally treat domestic violence so light-heartedly he categorized the incident in this case as "very very minor".  The wife can be heard in the full video indicating that she wants her husband to come home.

After inquiring of the wife what she likes to do and where she likes to eat, he ordered the husband to buy flowers, a card, get dressed up and take his wife to Red Lobster and bowling afterwards.  He was not ordered to let her win.  The Huffington Post's coverage of the order is available below:

Post-Divorce Problems: My Ex Isn't Following the Judgment

Unfortunately, sometimes the end of a case isn't the end of a dispute. Often two people who just don't get along anymore end up back in court to resolve an issue that arises after the divorce case has ended. Whether the case ended with an agreement (usually called a "Separation Agreement" or a "Divorce Agreement") or with a trial, there will be a judgment dividing the assets and liabilities of the former spouses, and defining any support or other obligations owed to each other, or to any children.

This Judgment can be amended or enforced as necessary and dependent on certain circumstances.  Our next series of posts, entitled Post Divorce Problems, will address some of the common reasons that you could end up back in court, post-judgment.

In some instances, ex-spouses return to court when one party fails to follow the judgment. When the judgment is clear (and unambiguous) as to what that individual is supposed to do, or not do, and that individual violates the judgment, the aggrieved party can file a Complaint for Contempt.  In short, a complaint for contempt is a new lawsuit in which one person is accusing the other person of not following the judgment and requesting sanctions.

There are two types of contempts: civil and criminal. The goal of a civil contempt is to force compliance with the violated court order, and they are far more common than criminal contempts. The goal of a criminal contempt is to punish the other party for violating the earlier court order.  Civil contempts are more common because usually you want the person to be forced to do what they were ordered to do in the first place, not just be punished for their failure to comply.

Click here to learn more about Contempt Complaints.

Client Choice: Flat Fee vs. Hourly Rates

There are many advantages and disadvantages to flat fee representation. The advantages include knowing the total cost in advance (which allows for better planning), understanding the full commitment at the beginning of the representation, and a resulting likely reduction in client stress. Because of these advantages many attorneys are pitching the fixed fee model as a revolution in client billing.

The problem with this revolution, though, is that firms that are switching to fixed fee billing are making the same mistake that the traditional hourly billing model makes. These firms are assuming that they know what is best for their clients.

I often tell my clients that they set the goals, and my job is to tell them whether I can meet those goals or not. If I think we can meet the goals, then my job is to use my knowledge of the court process and negotiation to try to reach those goals. In the same way that I do not believe that I can set a client's goals for them in a case, I don't think that I should set their financial goals for them either.

The main disadvantage of flat fee billing is that both the attorney and the client take a risk. If the client refuses to settle the case, or the other party refuses to settle, and the case is litigated, the attorney will likely spend more time than they assumed when quoting the fixed fee. The attorney can accept this risk because they represent multiple clients and the cases that settle quickly will outweigh these cases. The client's risk, however, is that the flat fee is more than they would have spent if their case settles quickly. The client's gain is the settlement, but they do not recover for this risk in other areas of their finances. The law of averages favors the attorneys.

Do the disadvantages outweigh the advantages? Isn't that for the clients to decide? After all, it's their money. That is why at Kelsey & Trask, P.C. we offer both hourly rate representation and flat fee billing. Call us for a free one hour consultation at (508) 655-5980 and let us know if you are interested in a flat fee quote or hourly rate billing (or learn about both options).

Protecting your Privacy in a Divorce. Who has access to your mail, e-mail, etc.?

I recently read an article entitled Is Your Boyfriend Reading Your Facebook Messages?, which stated that in response to an online survey, more than 20% of men admitted to reading their partner's e-mail or messaging accounts, and another 20% said they hadn't yet but would if they were suspicious that their partner was up to something.

Of course, this raises significant concerns about the behavior of the 20% who have already invaded their partner's privacy, including concerns about trust in a relationship and the dangers of controlling behavior in relationships.

It is just as shocking, though, that just as many men responded that they hadn't invaded their partner's privacy yet, but would if they were suspicious. Or, at least it would be shocking if I wasn't a divorce attorney.

In fact, I often warn my clients that everything they say can and will be used against them in Court, and that includes things they say on facebook, twitter, and even potentially in their e-mail or snail mail. Many parties don't realize that besides the lack of privacy on sites like facebook, even their e-mail and letters are discoverable in a Divorce case and could become evidence. The only communications that are not admissible are those that are privileged, such as communications with your attorney.

Regardless of the fact that some communications are discoverable, that doesn't mean you should make access to your private life easy for your ex, or allow potential breaches of the attorney-client privilege. Here are some immediate steps you should take to ensure that your ex does not have access to your e-mail, mail or other accounts:

1. Immediately change all of your passwords for e-mail, facebook, banking and other accounts. Don't use the same passwords for any accounts and make your passwords complicated so that your ex cannot guess them. For reasons why you shouldn't choose easy passwords check out this article at LifeHacker. For tips on picking strong passwords check out this article at TechSoup. If you still have concerns about an account, close it and open a brand new account.

2. Obtain a P.O. Box. Obviously if you and your ex have not yet separated there is the potential for issues with your mail, but even if you have separated and our living apart, your mail is still often vulnerable to both accidental and purposeful interception. For example, if your ex places a mail forward on their name, any mail that is marked poorly (Mr. instead of Mrs. by accident) could be forward to your ex without you ever seeing it. In addition, federal laws against mail tampering are easily broken since none of us have locks on our mailboxes. And unfortunately, children often having prying eyes.

Considering that the cost of a P.O. box for a year is probably cheaper than one hour of your attorney's time, it's well worth the investment to avoid the potential problems of having your mail unsecure.

3. Encrypt Electronic Communications. At Kelsey & Trask, P.C. we use SSL encrypted e-mail, and we encrypt and password protect any documents we send to clients that have private or financial information. You should ask your counsel to do the same to ensure that even if your account or your computer are somehow accessed, the draft and final files that you have exchanged with your counsel are not easily accessed.

For more information about protecting your privacy as much as possible through the divorce process, contact Attorney Justin Kelsey at (508) 655-5980 and schedule a free one hour initial consultation.

5 Worst Divorce Mistakes - MISTAKE #3: "Our friends should know my side of the story!"

MISTAKE #3: TELLING THE WORLD YOUR SIDE OF THE STORY

Although I always encourage my clients to confide in and find support in close family members or family, I also warn them against the danger of sharing too much. The dangers of sharing your private information on sites like Facebook and Twitter have been discussed on our blog before and have made recent news as well. But this is just the latest way to share too much.

While it is important to have a support system when going through a divorce, talking to anyone who will listen usually results in your personal information making it back to your spouse, or even into court. Mutual friends can inadvertently disclose important strategies while trying not to take sides. And helpful friends explaining what their sister's best friend's brother's divorce was like can provide poor and unreliable information. If you have concerns make sure you discuss them with your attorney first and only discuss your case with your closest confidants. In addition, make sure you consider how your case is different than anyone else's and discuss any specific facts that concern you with your counsel.

Click here to view Mistake #2.

Q OF THE WEEK: How do I calculate child support?

Child Support is the amount of money paid by the non-custodial parent to the custodial parent for the support of the children. Child Support is calculated using a formula called the Massachusetts Child Support Guidelines. The formula is presumptive, and Judges can only vary from the formula in specific circumstances. You should consult an attorney to discuss what facts in your case might warrant a variation from the formula.

To view the formula and calculate your Child Support click here.

Is Visitation an Outdated term?

I once overheard an older relative ask one of my cousins if her husband was babysitting their children.  Since my cousin didn't have the children with her, the older relative was simply asking if the children were with their father.  But my cousin heard it differently.  She answered that he was their father and didn't "babysit", he "parented" their children.

For those who grew up at at time when Ward Cleaver was the typical father figure, only entering the picture to discipline the children or throw a ball with them, if a father is taking care of the children while mom is out that is unusual.  But the newest generation of parents grew up with the hands-on parenting of Dr. Huxtable and Danny Tanner.  To what extent TV is just reflecting the change in societal norms or affecting them is beyond the scope of this post.  But clearly there has been a shift regarding how involved the average father is in the everyday parenting responsibilities.

If the notion that a father could "babysit" his own children is outdated, can we say the same about the notion that a non-custodial parent "visits" his or her own children?

A recent Huffington Post headline regarding Katie Holmes and Tom Cruise raised my ire because of the purposely vague and inflammatory use of the term "full custody."  In my response, I addressed why that term can be so confusing and hurtful.  Coincidentally (or perhaps not), the Huffington Post has again written a headline that is insensitive to these issues: Suri Cruise Prepares To Visit Dad Tom Cruise For First Time Since Parents' Split.

Katie Holmes and Tom Cruise released a statement when they settled their divorce that made it clear (at least publicly) that they felt both parents should remain involved in their daughter, Suri's, life.  It's a shame that the media, specifically in this case The Huffington Post, believe it is still appropriate to characterize Dad's time as merely a visit.

Whether in litigation, mediation, or collaborative divorce cases, we encourage our clients to consider what their parenting schedule and parenting plan should be before they worry about the legal labels.   The goal of speaking about parenting in these terms is to refocus separated parents on what is best for their children, rather than who is "winning."  Recognizing the shared roles that parents have and the cooperation necessary to parent a child together even if from separate households is more important that what words we use to describe the arrangement.  

This approach takes the focus off of the language, whether it's the old language of "visitation" or the new language of "parenting time."   It's still important to remember, though, that certain terms can be offensive or hurtful, especially when it comes to a subject as sensitive as taking away someone's children.  Because the term "visiting parent" has come to be considered derogatory it's probably time to retire it.  Speaking about each parent as having parenting time respects them as equal parents even if they don't have equal time.  And respect is something every divorce case could use a little more of.

Alimony Reform in the News

The Alimony Reform Act of 2011 has started to generate some buzz in the news:

WGBH Panel Discussing both sides of the Alimony Bill:



WCVB News: State May Eliminate Alimony for Life (Video)

Fox25 News: Alimony reform bill: Are changes on the way?

Click here to read our summary of the bill.

One Court instead of Two for Domestic Abuse Cases in Norfolk County – A Pilot Program

Beginning May 4, 2009, Norfolk County will start a pilot program involving the interdepartmental transfer of certain abuse prevention proceedings. In plain English this means that 209A Restraining Order cases opened in a District Court in Norfolk County may be transferred to the Norfolk Probate and Family Court, if there is already an action pending in that Court.

EXAMPLE: Whitney and Bobby are married and live in Dedham. One night they get into a fight and Whitney calls the police. Bobby is not arrested but is escorted from the home by the police and Whitney is provided with an emergency 209A Order for Protection from Abuse (commonly called a Restraining Order). The Restraining Order requires that both Whitney and Bobby show up at the Dedham District Court the next day to go in front of a Judge who will decide whether the Restraining Order should be extended.

After a hearing the Judge extends the Restraining Order for two months ( “a cooling off period”). That afternoon, Whitney goes to the Norfolk Probate and Family Court in Canton and files a Complaint for Divorce. Whitney also files a Motion for Temporary Orders asking a Family Court Judge to give award her custody of the children and order Bobby to pay her child support.
At the hearing on Whitney’s Motion for Temporary Orders, Bobby asks for visitation because he hasn’t seen his children since the Restraining Order went into effect. The Probate Court Judge orders physical and legal custody to Whitney with a visitation schedule for Bobby.

Under the current rules, there are now two Orders from two different Courts that are different. The problem for Bobby is that the Dedham District Court Order is the one that the police will follow. If Bobby tries to pick up his children for visitation he may be arrested unless he and/or Whitney go to the Dedham District Court and ask the Court to amend the Restraining Order.

The pilot program would give the Norfolk Probate and Family Court Judge the power to transfer the Dedham District Court 209A Restraining Order case to the Norfolk Probate and Family Court. This means that when the Family Court Judge makes a decision it will apply in both cases and amendments can be made to the Restraining Order immediately to be consistent with the Probate Court orders.

This benefits Whitney and Bobby by having only one court for them to visit, allowing for less court hearings total, and by having one Judge who can hear all issues and make decisions that are consistent and take into account both the safety concerns of Whitney and the best interest of the children.

The full language of the Order can be viewed here. Under the pilot program, the transfer can be initiated by motion by either a party or sua sponte by the Probate and Family Court judge. The parties will have an opportunity to be heard on the question of transfer.

The pilot program will be for one year and will be reviewed after six months by the Chief Justices of the Probate and Family Court and the District Court.

Dramatic Impact of Mediation on Children of Divorce

According to a 12 year study by Dr. Robert E. Emery, Ph.D., a Professor of Psychology and Director of the Center for Children, Families, and the Law at the University of Virginia, Mediation can have a dramatic impact on children of divorce and their relationship with a non-residential parent. Dr. Emery summarizes his findings in the recent issue of the Family Mediation Quarterly.

The study used a coin-flip to decide whether high-conflict custody cases would try a short-term (five hour average) mediation. The results of only five hours of mediation were amazing, especially with relation to the children.

Twelve years after the average divorce in America, nonresident parents saw their children weekly in only 11% of cases. In the cases where the parties tried mediation based solely on a coin-flip 28% of nonresident parents saw their children weekly after 12 years. This is a significant difference and the difference is even more significant with reference to telephone contact (weekly telephone contact: national average 18% & mediation average 52%).

To see how these effects extended to other parental involvmenet as well (school, discipline, religous upbringing, etc.) check out the article on the MCFM's website here.

Even in high conflict cases these results suggest that just giving mediation a try can be beneficial to your child's relationship with their parents and therefore beneficial to your child's health. Tough statistics to ignore if you care about your children.

To schedule a 1-Hour Free Mediation Consultation with Kelsey & Trask, P.C. call 508.655.5980 or e-mail us.

The New Alimony Law: A Primer for the Public

The Divorce Center Offers Seminar Introducing Recent Major Changes to the Massachusetts Alimony Law
Effective March 1, the Alimony Reform Act of 2011 Changed the Massachusetts Alimony Law Significantly for the First Time in 30 Years

Newton, Mass. – March 28, 2012 – 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:

“The New Alimony Law: A Primer for the Public” on May 15, 2012 from 7:00 to 9:00 p.m. at the Weston Public Library community room, Weston, MA.

David L. Rubin, Esq., and Debra L. Smith, Esq., attorneys practicing divorce and family law, will speak on the numerous changes made to the Massachusetts Alimony Law, which has not been updated in 30 years. The changes were prompted by the Alimony Reform Act of 2011 and were effective March 1.

The Massachusetts Alimony Reform Act of 2011 changed when and how alimony can be ordered, and when and how alimony orders can be ended. The new law affects anyone who currently is or may be receiving alimony.

Attendees will learn:

• The multiple types of alimony defined by the new law; 
• The maximum amount of alimony defined by the new law; 
• The new limits to the duration of the general term of alimony; 
• When and if existing alimony orders can be modified; and 
• The factors that will determine the type, amount and duration of alimony.

The Weston Library is located at 87 School Street, Weston, MA.

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

For more information on “The New Alimony Law: A Primer for the Public” and to register for the seminar, visit: http://thedivorcecenter.org/public/seminars.php.


About the New Massachusetts Alimony Law:

The new Massachusetts Alimony Law states that the amount of alimony should not exceed the recipient’s need or 30-35% of the difference between the two parties’ incomes. Also, the income considered when setting alimony orders does not include capital gains income and interest and dividend income from assets already divided. When modifying orders, income from a second job or overtime is excluded if the party works more than a single full-time equivalent position, or if the second job or overtime started after entry of the initial order. The general alimony term ends upon the death of the payor or recipient, remarriage of the recipient, the payor attaining the full retirement age, co-habitation of the recipient with another person for a continuous period of at least three months, or the expiration of the duration formula, which is based on the length of the marriage.


About The Divorce Center:

The Divorce Center is a non-profit organization of legal, financial and mental health professionals providing support and education for people going through separation or divorce. Since 1983, the non-profit organization has been helping ease the trauma of divorce and make the process more civilized, especially for the children.

The Divorce Center provides two tiers of service:

• Educating individuals and the community at large about divorce and its effects, and the services and resources available to them; and 
• Helping professionals from various disciplines improve the service they provide to their divorcing clients. The organization offers its expertise and compassion to all those who need it — individuals and families, divorce professionals, religious groups, parent organizations, non-profit groups, and others who can benefit from the professional programs, public education and support groups.

For more information, visit http://thedivorcecenter.org.

Dealing with the Stress of Divorce

As I get older I have begun to realize how much of my success is due to the support I receive from my family and friends. Without that support system to help me in the difficult times I wouldn't have had the courage and confidence to take many of the chances in my life that have led me to where I am. This has brought me to realize how important our support systems are and how often we take them for granted.

Going through a divorce is often described as the second most stressful event in a person's life (next to the death of a loved one). It is important to find ways to reduce this stress so it doesn't negatively affect other areas of your life.

When people experience the death of a loved one, social conventions provide many events and opportunities for family and friends to provide support. But talking about divorce is different. Sometimes people feel uncomfortable talking about their divorce with their friends and family. In addition, sometimes sharing too much about your divorce case with friends can make its way back to your spouse (as we warned about in a previous post: 5 Worst Divorce Mistakes - MISTAKE #3: "Our friends should know my side of the story!").

If you have a strong support system don't be afraid to lean on them when times are tough (and to be there for them when they need you). If you're having difficulty dealing with the stress of a divorce case, and your support system is not as helpful as you need, then seek professional help. We often recommend that our clients meet with a therapist to ensure that they are dealing with their emotions in a healthy way. If you're comfortable having an attorney help you with the legal aspects of your case, you should also be comfortable admitting you might need help (from family or a trained professional) to help you with the other aspects.

Divorce is not a Four Letter Word

As part of small talk when meeting new people we are all often faced with the question: What do you do? And, not surprisingly, answering "I'm a divorce attorney" is usually met with uncomfortable silence, and then the even more uncomfortable questions and comments:

That must be hard. How do you deal with such sad situations? How do you keep doing it? And so on.

People ask these questions because when they hear "divorce", they think about sadness, anger, affairs, breakups and all of the reasons why we never want to experience divorce in our own life. What they don't think about, though, is what the role of a divorce attorney actually is.

Divorce doesn't have to be a four letter word. In fact, divorce should be thought of as a process. Divorce begins with sadness and anger, but it often ends with relief. I view the job of a divorce attorney as the same as any other attorney. People bring a problem to my office and my job is to bring them to a solution. That problem is that their marriage has broken down before they come to my office and they don't know how to pick up the pieces. Hopefully, when they leave my office clients are no longer focused on the breakup, but instead focused on the future.

I'm not trying to convince anyone that divorce is a good thing. But if a marriage is over, getting through the divorce and rebuilding your life to a point where you can hope again is a good thing.

Can I start dating during my divorce?

There are two ways to ask this question: Can I start dating while my divorce case is pending? and Should I start dating while my divorce case is pending?

If you ask five different attorneys whether you should start dating during a divorce, you will probably get five different answers but here is ours:

From a technical legal standpoint, adultery in Massachusetts is still a crime. Although it is almost never prosecuted it is important to note that if you engage in an intimate relationship while still married you are technically violating Massachusetts law and this could be brought up in your divorce case.

From a more practical standpoint, as many of my clients have heard, I have a saying that goes "Don't live your life for your divorce case." By that I mean that you have to still live your life and make choices that are good for you, and not just good for your divorce case. But you also have to recognize that choices have consequences.

In this instance if you have met someone who truly makes your life better, I don't believe it is my place as your attorney to tell you that you shouldn't pursue that relationship. However, you should be aware of the potential consequences so that you can make an informed decision about whether it would be more prudent to wait until the divorce process is over.

You can minimize the potential consequences through the use of common sense. For example, one possible consequence of starting a relationship is the emotional impact on your spouse. As discussed in a previous post, the discovery of an extra-marital relationship can cause some people to become very upset, becoming more difficult to deal with and sometimes even impossible to settle with. You can mitigate this possibility by being discreet, and not rubbing the new relationship in your spouse's face (for instance by bringing the new significant other to court with you).

Another example relates to the finances. Any funds spent with or for a dating relationship during a divorce process could be seen as wasting of marital assets and will likely become an issue in the division of assets. Similarly if support is an issue any funds that can be spent on a dating relationship could arguably be available for support of your former spouse. You can minimize this issue by not spending any money on the new relationship until after the divorce is final.

Finally, if you have children, whether or not you choose to start a new relationship during the divorce process or afterwards you should give special consideration to how this will affect your children. It is universally accepted that introducing anyone new to your children at the early stages of a relationship is not healthy for the children, especially if the likelihood is that many such relationships will not work out. In addition, trying to introduce anyone to the children (even someone you are serious about) during the divorce process can be traumatic because the children are already dealing with a significant transition in their lives. If you are not sure the best way to handle introducing children to a significant other when they become significant, you should consult with a trained professional such as a psychologist or psychiatrist.

Question of the Week: Will my new job affect my Bankruptcy filing?

I have been out of work for some time, my bills have gotten out of hand, and I need to file for Bankruptcy. I may be getting a new job soon. Will my new job affect my Bankruptcy filing?

If a would-be Chapter 7 debtor were to see a significant change in their income before filing a Chapter 7 bankruptcy, there is a risk that the debtor would no longer qualify under the Chapter 7 Means Test, and must file under Chapter 13. While Chapter 13 Bankruptcies are often effective in allowing a debtor to cure mortgage arrearages and keep their house, if the debtor’s intention is to pursue liquidation of all assets (including the house) or does not have real property to protect, your increased income would be required by the U.S. Trustee to fund the Chapter 13 plan, and not be used for other costs/expenses. In this case, a Chapter 7 Petition should be filed before any increase in income.

I'm getting Divorced, can I file a Single Status Tax Return?

For the purposes of Federal and Massachusetts income tax returns you are required to file under the status of either "joint" or "married, filing separately" if you are married to your spouse on December 31st of the tax year in question. Therefore, if you are in the process of getting a divorce but were still legally married on December 31, 2010, then you must file under one of these two statuses for the year 2010.

There is no specific law that requires you to file under the status of "joint" or "married filing separately", and typically this is your choice. A Judge can order parties to file jointly if there will be a benefit (such as a higher refund), but this is not typical.

In each case the choice of how to file can be affected by different factors. For example, if you are concerned that your spouse is hiding income, then you definitely would not want to file a "joint" tax return because you could be liable for his/her hidden income.

In most cases it makes sense to file jointly because their is usually a financial benefit, but in your case you should consult with an accountant to figure out the best option for you.