Access to Justice: New Procedures in Probate & Family Court

On March 15, 2010, the Chief Justice of the Probate & Family Court released uniform Probate and Family Court Scheduling Practices and Procedures.

These procedures include certain requirements intended to promote predictability and uniformity of practice for the scheduling of all types of hearings in the Probate and Family Courts throughout the Commonwealth. The practices include mandatory scheduling of a next event and other requirements intended to keep cases moving forward.

One of the changes is to the Motion scheduling practice. Although some courts, such as Plymouth Probate & Family Court, previously allowed for scheduling of Motions at the discretion of the litigants (within the Notice rules), other courts, such as Norfolk, Middlesex and Suffolk Counties, only allowed for scheduling of Motions by the rules of their individual trial departments. According to the Chief Justice's new procedures:

"There shall be no restrictions on the number or timing of motions which
may be filed except as set forth above regardless of the nature of the underlying
complaint..."

The exception is that the First Justices shall have discretion, with the approval of the Chief Justice, to limit the marking of Motions. "Any limitation on motion sessions approved by the Chief Justice shall be posted in the division (Registry of Probate and courtrooms) and on the web site of the Probate and Family Court."

This should result in greater consistency throughout the counties, something probably more noticeable to attorneys than individual litigants. In the counties that used to limit the number of Motions, this will also result in getting into court more quickly (usually something desired by clients).

There is a downside though as well. At a recent Motion session in Suffolk which I attended with a client, there were 76 Motions scheduled. Luckily we were number three, but I would hate to be number 76. Although you might get into court a week or two before you otherwise would have, you should plan to be there all day.

Hopefully, as the courts get used to the new system these overloaded days will be less likely. Either way, I believe consistency of procedure among the counties is a good thing. Access to Justice should be the same no matter where you live.

Latest iPhone App now available in the App Store: Alimony Calculator

UPDATE: There is pending legislation for major changes to the alimony statute in Massachusetts. The Alimony Reform Act of 2011 was filed on January 18, 2011 and you can learn more about the Act at MassAlimonyFormula.com or in our recent blog post highlighting the differences between the bill and the current law.

In addition to the Kelsey & Trask MOBILE web site at http://mobile.kelseytrask.com, our Massachusetts Child Support Calculator App, and our Means Test App, we are now offering the Divorce Spousal Support Calculator as an iPhone App.

You can calculate alimony the same as in the full calculator located on our website, but you can also save your calculations, e-mail them, and view the accompanying Article.

And the App is FREE!


Don't worry Droid and Blackberry users, you can still use the mobile calculator in your web browser here.

Mandatory Discovery Expanded to Include Separate Support and Paternity Actions

Effective May 1, 2009, Supplemental Probate and Family Court Rule 410 will now require mandatory self-disclosure in Paternity and Separate Support cases similar to that already required in Divorce cases.

Under the old Rule 410, parties in divorce cases are required to, within 45 days after the date of service of the Summons, serve on the other party specific documents designed to disclose the basic financial information necessary to settle the case. This includes tax returns for the past three years, last four (4) paycheck stubs, bank account statements, health insurance documentation, retirement account statements and more.

Under the new Rule 410 effective May 1, 2009, parties in Divorce and Separate Support cases are required to, within 45 days after the date of service of the Summons, serve said documents (tax returns for the past three years, last four (4) paycheck stubs, bank account statements, health insurance documentation, retirement account statements, etc.). In addition, new Rule 410 requires parties in Paternity cases to produce tax returns for the past three years, last four (4) paycheck stubs, and health insurance documentation, within 45 days of service.

The old rule was enacted to save parties valuable time and energy filing discovery requests for documents that are likely necessary in every divorce case. Unfortunately, the failure of the old rule to include paternity and separate support cases meant that we still had to file the requests in those cases (sometimes just requesting all documents required under Rule 410).

The new rule expands this convenience and is a welcome change, which will hopefully save lawyer's time and client's money.

What are the 5 Worst Mistakes People make in their Divorce case? MISTAKE #5: "I Want My Day in Court"

There is a saying that criminal law attorneys see bad people acting their best while family law attorneys see good people acting their worst. As a divorce attorney, I have seen generous and commendable behavior, but I have also witnessed my share of vindictive and damaging actions committed by divorcing litigants. I have put together this list of the worst mistakes that parties make in their divorce case in the hopes that at least some people will think twice before committing these mistakes in their lives.

I have excluded purposefully bad behavior such as physical abuse because it should be obvious that such actions are not only inappropriate but criminally dangerous.

MISTAKE #5: WANTING YOUR "DAY IN COURT"

Divorce is best viewed as the break-up of a business partnership. A long and drawn out divorce trial will ensure that you pay your attorneys significant funds, but will not ensure the best outcome. Is it likely that a Judge hearing only admissible evidence over the course of a few days can learn everything about your past, present and goals for future? Or is it more likely that you and your spouse, working together, can divide your partnership in a way that provides the best possible future for both of you, taking into account all of the information you both have about your lives and goals (most of which will never end up in front of a Judge)?

Unfortunately, many parties aren't focused on what their life could be after the divorce, but are still focused on their anger or sadness over the ending of their marriage. These parties can be heard saying things like "I just want my day in court" or "the Judge should hear my side of the story" or "the whole world should hear what he/she did." While the desire to be heard and express one's feelings about the end of a marriage is understandable, the court is exactly the wrong forum for this type of closure. Therapists are much cheaper (sometimes even covered by insurance) and much more likely to provide you with emotional insight.

At the end of the day, no matter how much of "your story" gets discussed in court, the court is still only going to decide which assets you get, and which assets your spouse gets. The Judge will not give you a trophy or any other sort of validation regarding who was "right" and who was "wrong." So, save your money, and rather then your "day in court", figure out what you want the rest of your days to be like and make sure that you and your attorney are working towards those goals.

Click here to view Mistake #4.

When a Facebook Friend Request is Against the Law

Two weeks ago, a Florida man was arrested for logging on to his Facebook account and requesting that his estranged wife list him as a "friend" on the popular social networking website, Facebook. Of course, ordinarily requesting that someone be your "friend" on Facebook is not an arrestable offense, but it may be if it is in violation of a restraining order.

While it is important to realize that the actual act of requesting that someone be your Facebook "friend" may seem completely innocuous, a judge may have little patience for it if there is an outstanding restraining order between the two individuals. If you are a party on either side of a restraining order, contact online, such as a friend request, instant message, email, or otherwise, is considered to be contact which may violate "no contact" provisions of most restraining orders.

What is the purpose of the Divorce Nisi waiting period?

In Massachusetts the statutory waiting period after a Judgment of Divorce and before the divorce becomes final (or absolute) is called the Nisi period. After a divorce case settles or goes to trial, a Judgment of Divorce Nisi will issue and it will become Absolute after a further ninety (90) days.

This waiting period serves the purpose of allowing parties to change their mind before the divorce becomes final. If the Judgment of Divorce Nisi has issued but not become final yet, and you and your spouse decide you don't want to get divorced, then you can file a Motion to Dismiss and the Judgment will be undone. Although many of my clients who are getting divorced think the idea of getting back together with their ex sounds crazy, I have had cases where this happened.

In addition to offering a grace period to change your mind, the Nisi period has three other legal effects:

1. The most obvious effect of the waiting period is that you cannot remarry during the Nisi period, because you would then technically be married to two people.

2. If the Nisi period crosses December 31, then you are considered married for that tax year which means you must file under "joint" or "married, filing separately" and cannot file as "single".

3. Under some health insurance plans you may not be able to stay on your ex's health insurance (as explained further in our previous post, Will I be able to keep my health insurance after the divorce?), but at least during the Nisi period you can stay on the health insurance.

Custody Reform: What is it?

If you live in Massachusetts, by now you've probably heard about Alimony Reform. Both the House and Senate have passed the Alimony Reform Act of 2011 and it now awaits the approval of the House again (for some language changes made by the Senate). Although, the majority of people in Massachusetts are just now learning about this reform, it has actually been in the works for at least 10 years. In various forms there have been numerous attempts to update the alimony laws in Massachusetts, culminating with a recent Legislative Task Force which authored and approved the current bill.



The same type of reform may be on the horizon for the Massachusetts custody statute.


The Joint Committee on the Judiciary held a public hearing on May 18, 2011 where public testimony was given primarily on Alimony Reform and a pending human trafficking bill. But there were also a few people (mostly fathers) who were there to present testimony in support of a few different bills that would make changes to how custody is determined in the Massachusetts Probate and Family Courts. After further review there are currently six pending bills which would make significant changes in this area, and six more that would make minor tweaks or additions to the current custody statute.


We have provided links to the current custody statute and each of the proposed bills, below. Over the next two weeks we will be posting a series of blogs evaluating the pros and cons of each of these proposals and comparing them to the current statute. We believe that, similar to alimony reform, there are flaws in the current law that could be improved with some updating. However, we also recognize that some of these proposals go too far.


We will provide insight to how these proposals might work in certain instances and fail in others and we hope that our analysis over the course of these posts will provide a benefit from our experience as family law practitioners.


Current Statute: M.G.L. 208 s 31 - Custody of children; shared custody plans


S.659 – Legislation to strengthen family relationships through responsible shared parenting;


S.847 – Legislation to share custody of minor children of divorced or separated parents;


H.1306 – Legislation relative to shared parenting in cases of divorce;


H.1330 – Legislation relative to the determination of the legal custody of children in court cases;


H.2244 – Legislation relative to the rights of parents in child custody proceedings;


H.2684 – Legislation relative to supporting children and parental custody;


H.2851 – Legislation relative to mediation of divorce cases involving children;


H.1305 – Legislation relative to child care involvement of non-custodial parents;


S.691– Legislation relative to parental choice of terminology in certain domestic relations matters;


H.2258– Legislation relative to parental choice in child custody agreements;


H.3289 – Legislation relative to the modification of custody orders involving parents called to active military service;


H.3289 – Legislation to prohibit certain activities within the home until a divorce is final and financial and custody issues are resolved.


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


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


Child Custody Mediation

Collaborative Child Custody Resolution

Child Custody Litigation

How much will my Divorce cost?

Every divorce case is different and every case will therefore have different costs. For instance, if you are Tiger Woods your costs could include the loss of endorsement deals, in addition to the more typical costs of attorney's fees, alimony, etc. And that's not even taking into account whether or not you think his poor playing of late is also caused by the stress of his divorce.

To generalize for those of you who are not billionaire celebrities, though, I can tell you that there will still be significant costs to getting divorced and they will include:

1. The Emotional Cost: Divorce is often described as the second most stressful event in a person's life (next to the death of a loved one). We can't ignore that stresses in our life have a cost on our daily productivity, our ability to be optimistic, and our availability to deal with other stressful events. This cost is often best addressed through therapy or family support, and just because it can't be fixed through the legal process doesn't mean it should be ignored.

2. The Financial Cost: The financial price of your divorce has two parts: the cost of splitting up joint finances, and the actual price you will pay to become divorced.

2a. Joint Finances -> Individual Finances: It is a simple fact that it costs more to support two households than one. Whether or not your case warrants child support or alimony, there will still be a cost to dividing up the assets and liabilities that you and your spouse shared during the marriage. Many people will need to learn how to manage their finances, because this is something that their spouse used to do. Even if you helped manage the finances, you will need to consider how your budget will have to change now that you only have access to a portion of the assets you once did. This should include changing how you plan for retirement. All of this begins with a true, accurate and complete Financial Statement. A good Financial Statement is not just a tool for the Court, but can also help you and your attorney figure out how you will meet your budget as a single person.

2b. The Pricetag: And finally, the most obvious cost of divorce is the actual out-of-pocket cost to obtain the Judgment of Divorce. In Massachusetts, the Filing fee for divorce is currently $215 ($200 + $15.00 surcharge), and an additional $5 for the Summons if you filed a Complaint for Divorce instead of a Joint Petition.

In addition to the filing fee, if you hire an attorney their rates and fees can vary greatly. I always recommend that my potential clients interview multiple attorneys. Although cost is certainly one factor, it is my opinion that trust is the most important factor when interviewing an attorney. If you can't trust your attorney, then they won't be able to do their job and you will end up spending more money in the long run anyway.

To learn more about what we charge for Divorce, call Attorney Justin L. Kelsey, Esq. at (508) 655-5980 or click here to schedule a free one-hour consultation.

Is No-Fault Divorce a Good Thing? It may soon be the law in all 50 states.

According to a New York Times article, the New York State legislature recently approved legislation that would allow No-Fault divorces in New York. The state of New York is the last state that still requires one spouse to have committed a wrong (or at least to take the blame) for the dissolution of a marriage.

Many, including the Roman Catholic Church, oppose the change because they believe it will raise the divorce rates in New York. Interestingly, the divorce rates in New York, though low compared to all 50 states (ranking 33rd), are still higher than a state like Massachusetts where No-Fault Divorce has been the law for more than thirty years (3.4 per 1000 people per year in New York vs. 2.5 per 1000 people per year in Massachusetts according to StateMaster.com).

If No-Fault divorce doesn't cause a rise in divorce rates, then what is the impact?

According to a New York Times op-ed column, there are potential advantages a. The advantages include an 8-16% reduction in wife's suicide rates and a 30% reduction in domestic violence (according to a University of Pennsylvania report by economists Betsey Stevenson and Justin Wolfers). In addition, the ability of one participant to end the marriage can change the bargaining power in the relationship causing both partners to change how they view the marital relationship. This could cause either party to invest less in the marriage, or could cause both parties to be more attentive to unhappiness in the marriage.

A valuable impact of allowing no-fault divorce, though, can be the ability of more couples to use mediation. Because neither party needs to accept fault, they are more likely to try and work out their differences with a mediator than litigate their case. Increasing the number of mediations could be the single-most positive impact of no-fault divorce, because, as one study found, mediation increases the likelihood of settlement, improved co-parenting relationships between parents, and improved the relationship of non-custodial parents and their children.

Sounds like it's about time New York joined the other 49 states in offering a No-Fault option.

Divorce in the Facebook Era

Facebook, Twitter, Flickr, Myspace, and Google 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 pictures and tags. So what happens when you get divorced? When do you change your relationship status? What do you do with tagged pictures of both of you? Do you unfriend your ex?

All of these questions and more were explored in a recent Gizmodo article: How to Survive the Modern Day Breakup. The basic takeaway point from the article is that you should use the same common sense prudence in your online life that you should use in your offline life.

For example, you wouldn't throw away family pictures just because you're getting divorced, but you might put them away in storage for a while. Similarly, you might want to remove your online pictures and save them on a hard drive, CD or DVD that you keep but put away for now.

Another example, is how you should handle relationship status changes. You might now want to call all your friends and tell them you're getting divorced. Similarly, you can change your relationship status on Facebook without having it appear in everyone's news feed by changing the privacy settings for your status.

Finally, consider what you write online to be as public as what you tell your most gossipy friend. If you don't want your comments to make their way back to your ex, then don't tell them to mutual friends, and don't post them online.

What is Full Retirement Age? - New Online Calculator.

Pursuant to the Alimony Reform Act of 2011, there is a presumption that general term alimony ends upon the payor attaining 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. The presumption can be rebutted but it requires clear and convincing evidence.

The Social Security Full Retirement Age may be different than your actual retirement date. Kelsey & Trask, P.C. has created an online calculator to help you determine your Full Retirement Age and retirement date by simply entering your birth date. Click here to try the Calculator.

The Calculator is based on the information available below which is taken directly from the Social Security website:

If you were born in 1944 or earlier, you are already eligible for your full Social Security benefit. If you were born from 1943 to 1960, the age at which full retirement benefits are payable increases gradually to age 67. The following chart lists the full retirement age by year of birth.
Age to receive full Social Security benefits:
Year of birth	Full retirement age
1943-1954	66
1955	66 and 2 months
1956	66 and 4 months
1957	66 and 6 months
1958	66 and 8 months
1959	66 and 10 months
1960 and later	67
Note: People who were born on January 1 of any year should refer to the previous year

The Do's and Don'ts of Hiring a Divorce Attorney

Donna Ferber, a psychotherapist and author of the book "From Ex-Wife to Exceptional Life: A Woman's Journey Through Divorce" (Purple Lotus Press 2009), recently wrote a two-part blog on the Do's and Don'ts of hiring a divorce attorney. Some of the highlights:

The Do's:

- Just because your friend had a good experience with an attorney doesn’t mean they are the right one for you. Trust your gut.

- Aggression doesn’t insure a “win”. An overly aggressive attorney may fan the flames of conflict rather than move toward resolution.

- Pick an attorney who understands this isn’t about “winning”. She/He should understand divorce is about a major change in the family and that more than the “bottom line” will be affected. A good family attorney is willing, when necessary to work with your therapist. He/she is focused on the family’s post divorce situation and understands the interconnectedness of the family does not end with the dissolution of the marriage. In short, they can see the “big picture”.

- A consultation is like a first date, what you see is probably what you get. Don’t pick someone who minimizes your concerns, is sarcastic or dismissive. Don’t ignore your own radar by dismissing his/her behavior in favor of excellent credentials.

- Be clear the court is not going to reward you for pain and suffering. Settlements aren’t based on how betrayed or rejected you feel. Keeping an objective attitude regarding the legal system can play a big part in keeping your expectations realistic.

The Don'ts:

- Don’t use your attorney as a therapist. And don’t use your therapy time to talk about legal issues. Efficient utilization of your professionals will keep costs down, provide you with better information and effective support.

- Don’t withhold information from your attorney because you are embarrassed. They aren’t there to judge you, but if you don’t give them the information they need, you cut down on their ability to effectively represent you. Don’t assume drinking, abuse or affairs are not relevant even if you live in a “no fault” state. Underreporting or minimizing can result in your not getting the best settlement. ALWAYS tell your attorney if there are weapons in your home.

Are there any provisions of a Separation Agreement then must Merge?

For an explanation of the difference between merger and survival of Separation Agreement provisions read our past post on this question.

There are two types of provisions that cannot survive a Judgment of Divorce but must be merged. These are provisions relating to child custody/visitation and child support.

The Court retains jurisdiction over provisions relating to child custody/visitation to protect the children. For example, in the event one party becomes unfit to parent the children it would be detrimental to the children to have that provision survive and be unchangeable. Although there is another method by which a parent can give up their parental rights permanently (through a Waiver of Parental Rights), there is not any way that a party can guarantee they will keep their rights forever. The right to be custodial parent will always be subject to your continued fitness to parent your children.

Although typically paid to the custodial parent, child support is also for the benefit of the child, not the parent. Therefore, you cannot give away your child's right to seek greater child support if there is a material and significant change in circumstances. Accordingly, the court requires that child support provisions merge as well.

These are the only two types of provisions that must be merged in any case involving children. There may be other provisions, however, that in certain circumstances the Court may require you to merge. One example of this is in very long-term marriages (such as a 30 year marriage or longer), the Court may refuse to allow parties to survive a waiver of alimony. Some Judges have expressed the opinion that it is not fair and reasonable to completely separate the finances of parties who have been married for such a long time. This could depend on other circumstances in the case as well.

For more information on whether your Agreement properly protects you with regards to the merger and survival clause you should consult with an Attorney. To consult with Kelsey & Trask, P.C. please call us at (508) 655-5980 or e-mail us.

Question: What other factors should I consider when deciding when I should file for Bankruptcy?

Question: What other factors should I consider when deciding when I should file for Bankruptcy?

Factors regarding the need to obtain an automatic stay will likely be dictated by your creditors, not you. The automatic stay is a useful tool in temporarily stopping foreclosure proceedings brought by your mortgage holder(s), as well as collection efforts, collection calls and lawsuits filed by your creditors, if any. This foreclosure and debt collection process generally takes a few months, not a few days, and the benefit of the automatic stay can create some additional time for the debtor to deal with logistical issues associated with preparing the bankruptcy petition, appraising assets, selling real property or finding new housing, if necessary.

In order to file for bankruptcy under any section of the Bankruptcy code (Chapter 7, 11, or 13), your federal income taxes must be filed up to the current year (2008). Other documents are necessary for preparing the bankruptcy petition and schedules, such as a credit report, current credit card statements, bank statements, and income information. If this information is not immediately available, it will take some time to collect and review. If you believe a bankruptcy filing is on the horizon, your best bet is to contact an attorney for a bankruptcy planning consultation, then begin preparing the information needed to file.

Equally important in deciding when to file is a debtor’s own ability to handle the current situation, balanced against their need to make immediate changes. Some debtors will need time to prepare for relocation to an apartment or smaller home, whereas others will be anxious to take action to save their house or get a fresh start. These factors are unique to each case, and should be discussed with an attorney before filing your bankruptcy petition.

What happens to my case if I move out of state?

What happens to your case when you move out of state, depends on the type of case, and what stage your case is currently in.

Divorce Cases:

If your Divorce case has not been filed yet and you or your spouse move to another state, that state may gain jurisdiction over your case after a certain period of residency. For persons moving into Massachusetts from other states, Massachusetts gains jurisdiction over your case after 1 year of residency (or in other unique circumstances) and you can then file for Divorce in Massachusetts. If you want to file in another state you will have to meet their residency requirement before you can file there. In addition, another state may not be able to take full control over your entire case if you have left children or property behind in Massachusetts. You should consult with an attorney in both states if you are in this situation to make sure you choose the appropriate forum for your case.

If your Divorce case has already been filed in Massachusetts and you or your spouse move to another state, then Massachusetts still maintains jurisdiction over you and your case. That means that Massachusetts can still make decisions about your property, children, and support issues, even if you don't live here anymore. Although, there are unique issues that relate to relocating children out of state, for the most part you will still need to participate in the Massachusetts divorce case. If you hire an attorney you may not have to attend all hearings, because they can attend for you and explain to the Court the unique circumstances of your case and your current residence out-of-state.

If you have settled a Massachusetts divorce case and both parties agree that there has been an irretrievable breakdown of the marriage and agree on all other issues related to their marriage, as described in a Separation Agreement, then you can file a Joint Petition for Divorce under the provisions of Section 1A. In most cases, both you and your spouse must attend the uncontested divorce hearing and testify under oath that your marriage has suffered an irretrievable breakdown and that you signed the Separation Agreement freely and voluntarily. It is possible for only one party to appear at the hearing if there are special circumstances that prevent the other party from attending. To be excused from the uncontesting hearing you must file a Motion and Affidavit stating the reasons why the party cannot attend. The Affidavit should also include the testimony necessary for the uncontested hearing. You should consult an attorney regarding the drafting of the necessary language.

Modification/Contempt cases:

If you have a Divorce or Paternity Judgment in Massachusetts but have since moved out of state, Massachusetts will still retainer jurisdiction over certain parts of your case. For example, if your children still live in Massachusetts then any Modification or Contempt actions relating to the custody, visitation or support of the children will still take place in a Massachusetts Court. If you have moved out of state with the children you should consult with an attorney to figure out which state now has jurisdiction over these issues.

At Kelsey & Trask, P.C. we have handled many cases for out-of-state clients and can conduct a Free 1-Hour Consultation via telephone or Skype if you are interested in learning more about our services and how we would help you with your case.