There are advantages and disadvantages of mediation and you should consider both in deciding whether mediation is right for your case.
For instance, many people choose mediation because they believe it will be cheaper. In all cases that may not be true, but there is a difference between cost and value. Even if the cost of your mediation is higher than you were expecting, you can at least be confident that the time you were charged by your mediator was time spent on moving your case forward. Unfortunately this is not always the case when you go to Court.
Because there are so many other people seeking relief from the Court, I often have to explain to clients what I call "Hurry up and Wait." You have to be at the courthouse at your appointed time for any Motions, Pre-Trials, Contempt hearings, Trials, or other hearings. But there will likely be other cases waiting for hearing at that same time. And even if you are right on time, you will still likely spend hours waiting for your case to be heard. That time is time that your attorney cannot spend working on other cases and is therefore time you will be charged for. Essentially this means that when you go to Court you can end up paying your attorney for multiple hours, for work that could have been completed in a much shorter time working with a mediator.
Of course going to court is sometimes necessary because mediation requires both parties to voluntary participate. But if you are trying to decide whether to use mediation or not, think about whether you want to solve your problems, or wait (and wait, and wait) for someone else to solve them for you.
Tuesday, June 25, 2013
Thursday, June 20, 2013
Divorce Spousal Support Calculator: An Alimony Formula Resource
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.
The Stevenson-Kelsey Spousal Support Calculator has been renamed. It will now be known as the Divorce Spousal Support Calculator: An Alimony Formula Resource.
We are hoping that this name change will reflect our intention that the calculator be used by everyone to evaluate the reasonableness of alimony proposals in divorce cases. In keeping with that goal, we have also updated the latest calculator worksheet and article to include statutes from both Texas and Maine relating to alimony.
In addition, the article contains reference to the latest debate in Massachusetts surrounding a House and Senate bill both proposing changes to the current Massachusetts statute relating to alimony. Thank you to everyone who has provided us with support in keeping this calculator updated with the latest developments in alimony.
The Stevenson-Kelsey Spousal Support Calculator has been renamed. It will now be known as the Divorce Spousal Support Calculator: An Alimony Formula Resource.
We are hoping that this name change will reflect our intention that the calculator be used by everyone to evaluate the reasonableness of alimony proposals in divorce cases. In keeping with that goal, we have also updated the latest calculator worksheet and article to include statutes from both Texas and Maine relating to alimony.
In addition, the article contains reference to the latest debate in Massachusetts surrounding a House and Senate bill both proposing changes to the current Massachusetts statute relating to alimony. Thank you to everyone who has provided us with support in keeping this calculator updated with the latest developments in alimony.
Tuesday, June 18, 2013
Divorce and Taxes: Issue #4. Property Transfers
In any divorce where the parties own assets of value, there will likely be some transfer of assets between the parties as part of the divorce settlement. Assets that could be at issue range from tangible personal property (i.e. the pots and pans) to bank, investment and retirement accounts. In addition, the most valuable asset in many marriages is the marital home (and/or other real property). Although generally tax implications in spousal transfers are minimal there are some issues to look out for.
Issue #4. PROPERTY TRANSFERS: Because some assets are post-tax (such as bank accounts) and some assets are pre-tax (such as retirement accounts or capital gains), it is important to understand the tax implications in dividing them. If you trade a pre-tax asset for a post-tax asset of equal value without taking into account the resulting tax liability then you've lost the value of the tax liability. Therefore it is important to understand which assets have tax liability associated with them and whether there are any tax liabilities created through transfer.
PERSONAL PROPERTY WITHOUT CAPITAL GAINS: The transfer of personal property and bank accounts is simple. These items do not typically have any tax basis or capital gains upon transfer or sale because their value is either minor, depreciated, or, in the case of bank accounts, the appreciation is minimal.
PERSONAL PROPERTY WITH CAPITAL GAINS: Similarly, the transfer of property assets with capital gains implications is relatively simple. Pursuant to § 1041(a) of the Internal Revenue Code transfers to a spouse do not result in a gain or loss. This is also true for transfers to a former spouse if the transfer is incident to a divorce. This means that a stock transfered to a spouse or former spouse will maintain the same capital gains characteristics (and tax liabilities) as it would have had in the original spouse's possession. This is also true for an investment account, collectible, or house.
RESIDENTIAL REAL PROPERTY: In the case of residential real property there is a potential benefit to selling the house while still married instead of transferring it between spouses. There is a capital gains exclusion for profits realized on the sale of a residence and it is doubled for spouses. If the parties divorce and one party transfers their interest to the other, and that former spouse then later sells their interest in the residence they will only have the single capital gains exclusion. Of course, this only matters if there is significant equity in the residence.
RETIREMENT ACCOUNTS: Retirement accounts are not typically transferable between anyone, even spouses, without tax consequences. In order to transfer funds held in a retirement account the owner must first remove them from the retirement account, which, if allowed by the rules of the plan, will result in taxable income and, prior to retirement age, tax penalties. However, in the event of a divorce the IRS allows a one-time transfer by Qualified Domestic Relations Order (also known as a "QDRO"). A transfer of retirement account between former spouses pursuant to a QDRO results in a new retirement account held in the name of the other spouse in the amounts and per the terms specified in the QDRO. The retirement income paid from said account will be taxable income upon receipt just as it would have been to the original owner.
Click here to read Divorce and Taxes: Issue #5. Joint Tax Liability.
Issue #4. PROPERTY TRANSFERS: Because some assets are post-tax (such as bank accounts) and some assets are pre-tax (such as retirement accounts or capital gains), it is important to understand the tax implications in dividing them. If you trade a pre-tax asset for a post-tax asset of equal value without taking into account the resulting tax liability then you've lost the value of the tax liability. Therefore it is important to understand which assets have tax liability associated with them and whether there are any tax liabilities created through transfer.
PERSONAL PROPERTY WITHOUT CAPITAL GAINS: The transfer of personal property and bank accounts is simple. These items do not typically have any tax basis or capital gains upon transfer or sale because their value is either minor, depreciated, or, in the case of bank accounts, the appreciation is minimal.
PERSONAL PROPERTY WITH CAPITAL GAINS: Similarly, the transfer of property assets with capital gains implications is relatively simple. Pursuant to § 1041(a) of the Internal Revenue Code transfers to a spouse do not result in a gain or loss. This is also true for transfers to a former spouse if the transfer is incident to a divorce. This means that a stock transfered to a spouse or former spouse will maintain the same capital gains characteristics (and tax liabilities) as it would have had in the original spouse's possession. This is also true for an investment account, collectible, or house.
RESIDENTIAL REAL PROPERTY: In the case of residential real property there is a potential benefit to selling the house while still married instead of transferring it between spouses. There is a capital gains exclusion for profits realized on the sale of a residence and it is doubled for spouses. If the parties divorce and one party transfers their interest to the other, and that former spouse then later sells their interest in the residence they will only have the single capital gains exclusion. Of course, this only matters if there is significant equity in the residence.
RETIREMENT ACCOUNTS: Retirement accounts are not typically transferable between anyone, even spouses, without tax consequences. In order to transfer funds held in a retirement account the owner must first remove them from the retirement account, which, if allowed by the rules of the plan, will result in taxable income and, prior to retirement age, tax penalties. However, in the event of a divorce the IRS allows a one-time transfer by Qualified Domestic Relations Order (also known as a "QDRO"). A transfer of retirement account between former spouses pursuant to a QDRO results in a new retirement account held in the name of the other spouse in the amounts and per the terms specified in the QDRO. The retirement income paid from said account will be taxable income upon receipt just as it would have been to the original owner.
Click here to read Divorce and Taxes: Issue #5. Joint Tax Liability.
Saturday, June 1, 2013
Does a Criminal Record affect Child Custody?
If one of the parents in a custody case has a criminal record, the types of crimes on their record could have an effect on their chances of obtaining custody. In custody cases the issue is always going to come down to whether or not the best interests of the child might be affected.
In the most extreme case, in which one parent has been convicted of first degree murder of the other parent, the law specifically prohibits visitation with the children until they are of a suitable age to assent.
Similarly, but to a less serious degree, in making custody and visitation determinations the court will consider crimes that would cause one to question the fitness of a parent. These types of crimes would obviously include any violent crime convictions which could call into question whether the children would be in danger around a parent who has shown themselves to resort to violence when faced with conflict. In addition, drug and alcohol abuse offenses would call into question a parent's ability to care for their child without supervision.
Other crimes that might seem unrelated, such as theft or prostitution, may not cause a Judge to question the parent's ability to care for the child, but rather their suitability as a role model. These types of convictions might be a reason to limit time with the child, but may not require supervision (assuming that this criminal behavior is in the parent's past).
Judges have access to the criminal record of parents, and when issues are raised like those discussed above, the court will often request the records of both parents before making a determination. This is also true in any 209A Restraining Order cases.
It is also important to note that the Criminal Offender Record Information (CORI) system is changing in 2012. All of the changes are listed here. Some of the changes that could affect your case, include a new procedure for having an inaccurate record amended, and new permissions for access to sealed CORI by court order in domestic abuse/child custody actions and where a person’s safety is at stake.
In the most extreme case, in which one parent has been convicted of first degree murder of the other parent, the law specifically prohibits visitation with the children until they are of a suitable age to assent.
Similarly, but to a less serious degree, in making custody and visitation determinations the court will consider crimes that would cause one to question the fitness of a parent. These types of crimes would obviously include any violent crime convictions which could call into question whether the children would be in danger around a parent who has shown themselves to resort to violence when faced with conflict. In addition, drug and alcohol abuse offenses would call into question a parent's ability to care for their child without supervision.
Other crimes that might seem unrelated, such as theft or prostitution, may not cause a Judge to question the parent's ability to care for the child, but rather their suitability as a role model. These types of convictions might be a reason to limit time with the child, but may not require supervision (assuming that this criminal behavior is in the parent's past).
Judges have access to the criminal record of parents, and when issues are raised like those discussed above, the court will often request the records of both parents before making a determination. This is also true in any 209A Restraining Order cases.
It is also important to note that the Criminal Offender Record Information (CORI) system is changing in 2012. All of the changes are listed here. Some of the changes that could affect your case, include a new procedure for having an inaccurate record amended, and new permissions for access to sealed CORI by court order in domestic abuse/child custody actions and where a person’s safety is at stake.
Thursday, May 30, 2013
Why does the Texas GOP want to rescind No-Fault Divorce?
The Texas GOP in releasing their 2010 State Republican Party Platform have raised considerable amount of controversy over their ultra-conservative positions on criminalizing gay marriage, regulating school teaching of alternate theories to evolution, banning pornography, and other issues.
Included in the Platform is also an "urging" that the Texas legislature rescind no-fault divorce laws stating "We believe in the sanctity of marriage and that the integrity of this institution should be protected at all levels of government." Not surprisingly, the Texas GOP has joined the Catholic Church here by claiming that no-fault divorce is an attack on the "sanctity of marriage."
The Catholic Church recently claimed that allowing no-fault divorce in New York would 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).
The disconnect in this argument stems from the faulty assumption, of both the Texas GOP and the Catholic Church, that making it harder to get divorced and protecting the sanctity of marriage is the same thing. But they are not the same thing. Protecting the sanctity of marriage should be about raising the quality of marriages, about educating people before they get married, and even about saving people from bad marriages. Does forcing a victim of domestic violence to go through a harder process to escape his/her abuser protect the sanctity of marriage or give marriage a bad name?
Making it harder for people to obtain divorces doesn't lower divorce rates, but it does increase domestic violence, crowd courts, and discourage mediation. How do any of these consequences protect the sanctity of marriage?
Included in the Platform is also an "urging" that the Texas legislature rescind no-fault divorce laws stating "We believe in the sanctity of marriage and that the integrity of this institution should be protected at all levels of government." Not surprisingly, the Texas GOP has joined the Catholic Church here by claiming that no-fault divorce is an attack on the "sanctity of marriage."
The Catholic Church recently claimed that allowing no-fault divorce in New York would 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).
The disconnect in this argument stems from the faulty assumption, of both the Texas GOP and the Catholic Church, that making it harder to get divorced and protecting the sanctity of marriage is the same thing. But they are not the same thing. Protecting the sanctity of marriage should be about raising the quality of marriages, about educating people before they get married, and even about saving people from bad marriages. Does forcing a victim of domestic violence to go through a harder process to escape his/her abuser protect the sanctity of marriage or give marriage a bad name?
Making it harder for people to obtain divorces doesn't lower divorce rates, but it does increase domestic violence, crowd courts, and discourage mediation. How do any of these consequences protect the sanctity of marriage?
Tuesday, May 21, 2013
Q of the Week: What will I keep if I file for a Chapter 7 Bankruptcy?
When filing for Bankruptcy certain property of the debtor is exempt from the Bankruptcy estate, which means that it is not subject to being taken by the Trustee and used to pay your debts.
When filing a Bankruptcy as a resident of Massachusetts a debtor can choose to use the exemptions allowed under either State or Federal law, but you must choose one or the other. There are many exemptions that are similar under both schemes, such as the exemption of most qualified retirement plans. A table of the maximum exemptions as of April 14, 2009 in categories where the state and federal exemptions differ significantly can be found here. Please note that these figures are subject to change and you should consult with an attorney to obtain the most current figures and to decide which option you should choose.
When filing a Bankruptcy as a resident of Massachusetts a debtor can choose to use the exemptions allowed under either State or Federal law, but you must choose one or the other. There are many exemptions that are similar under both schemes, such as the exemption of most qualified retirement plans. A table of the maximum exemptions as of April 14, 2009 in categories where the state and federal exemptions differ significantly can be found here. Please note that these figures are subject to change and you should consult with an attorney to obtain the most current figures and to decide which option you should choose.
Sunday, May 5, 2013
Does Adultery still Matter? 5 Reasons Why it Does.
As a divorce attorney and mediator, I often see divorce cases where one party or the other has moved on and begun an affair. As suggested by fellow attorney, Gabriel Cheong, on his blog on this issue, I don't think this is as often the cause of divorce as it is a sign that the marriage was already over. So does adultery matter in a divorce case?
Regardless of whether adultery is a cause of the divorce or just the nail in the coffin, it can still have a major effect on how the divorce case proceeds in 5 different ways:
1. THE FIRST IMPRESSION: Adultery is still at base an emotionally charged issue. Most people's first reaction to hearing of one party cheating on the other, is to side with the "victim." This feeling is based on our own immediate reaction to the thought of being cheated on ourselves. This impression is not based on all the facts, and is an emotional, not rational, reaction. But because first impressions matter, adultery can have an impact on how a case begins which can often set the tone. It can sometimes be difficult to overcome this first impression and focus on how to move a case forward.
2. THE MORAL IMPACT - APPORTIONING FAULT: Adultery is still considered morally abhorrent conduct, even if it somewhat common. Therefore, discovery of adultery is often the moment when a party accepts that their marriage is irreparable. In addition, conduct is one of the factors in M.G.L. c. 208 s 34, the statute which directs the court in how to divide property and/or award spousal support. However, it is important to note that "conduct" is not necessarily weighed as heavily as the other factors and may not result in any major impact on the division of assets or award of support. Adultery is also still available as a cause for filing a Fault-based divorce. However, filing a case under the adultery statute is usually more trouble than its worth given the availability (and lower cost/ease of use) of the No-Fault grounds.
3. THE FINANCIAL IMPACT: While the conduct factor itself may not be weighed heavily in today's courts, any finances misdirected for use in an affair could directly affect the division of property. In fact, any funds spent directly on an affair (such as funds used for gifts, vacations, hotels, etc.) should arguably be replaced, or credited against the offender's share of the assets.
4. THE CRIME: That's right. Adultery in Massachusetts is still a crime. M.G.L. c. 272 s. 14 prohibits adultery and provides for both jail time and/or a $500 fine. Although a case hasn't been prosecuted since 1983 (Commonwealth v. Stowell) the statute is still in effect. This has certain unintended consequences, such as being able to use the 5th Amendment in a deposition if asked about the affair (i.e. invoking your right not to incriminate yourself in a crime). In most cases, the criminal aspect has a minimal impact on how the divorce proceeds.
5. THE DELAY: The biggest impact adultery has on a divorce case is usually the delay it causes in resolving the case because of the impact the affair has on the "victimized" spouse. The specific facts of the affair can have a major impact on how upset the other spouse is, as described in this recent NY Times Article about Adultery in the Martial Bed. The only way to avoid a trial in a divorce case is when both parties are ready to settle, and the hurt and anger that an affair causes can prevent the affected spouse from being ready to settle.
Sunday, April 28, 2013
Post-Divorce Problems: Who has to pay for College?
When it comes to the payment of college education expenses, the specific language that your Separation Agreement contains is very important. Many agreements require parents to contribute in proportion to their incomes and abilities at the time the college bill becomes due. However, if your agreement states that you are to share equally, then that could require you to contribute one half of the cost. How educational costs are defined by the agreement could differ greatly and the specific language of your Separation Agreement will be key to determining exactly what you are required to pay. And if you are required to pay a specific amount and you don't you could be liable for Contempt sanctions.
If the issue of payment of college is modifiable in your agreement or defined vaguely or not at all, then when it comes time to determine how the college education expenses are going to be split, you should try to reach agreement with your ex-spouse on this issue. If you are able to agree to a change with your ex (either directly, through mediation, or through collaborative negotiation) then you can file an agreement with your Complaint and request an uncontested hearing approving the division.
If your agreement is vague and you can’t agree, then you must file a Complaint for Modification to have the court determine contributions. If you have a specific agreement, but it is modifiable and you do not think you can afford to contribute an equal share for college, then you may want to seek modification of this clause by filing a Complaint for Modification.
If this issue is put before a Judge, many Judges are reluctant to order parents to contribute more than one third or one half of the cost of a state school. Of course, this also depends on the financial abilities of the parents.
Often child support and/or alimony orders may also be changed by a Judge if college education expenses are going to be added to the total support obligation.
Click here to learn more about filing a Complaint for Modification.
Friday, April 19, 2013
Implications for Firearms Owners Served with 209A Restraining Orders
What happens to the seized firearms?
Weapons seized as a result of a restraining order by the police may only be thereafter transferred to a licensed dealer by the police department. The police department may not release the firearms back to you (even should the order be ultimately vacated); nor may they release the firearms to any licensed individual – only a federally-licensed firearm dealer. M.G.L. c. 209A § 3B is very specific as to who the firearms may be transferred to after seizure. The restraining order statute requires that only a licensed dealer may take custody of the firearms, and act as a transfer agent when your carry rights have been restored.
This means that even if the order is vacated after a hearing, you must first request that the Chief of Police or other licensing authority reinstate your license to carry firearms or firearms identification card. Once your license has been reinstated, you must then determine if the firearms are in the custody of the police, or if they have been transferred to a licensed dealer. If the firearms are still in the custody of the police, they must first be released to a licensed dealer, who may then transfer them back to the license holder (after they perform the appropriate check to ensure that you are properly licensed).
What if your employment requires the use of a firearm (such as a police officer)?
If the restraining order was initially obtained without a hearing, and you are required to carry or possess a firearm as a condition of your employment, you may file an affidavit demonstrating such an employment requirement, and request an expedited hearing on the restraining order. The Court will schedule a hearing, but only on the issue of the surrender and suspension of firearms pursuant to M.G.L. c. 209A.
How long does a firearms license stay suspended after the initial service of a restraining order?
If the restraining order is extended at the 10-day hearing, or at anytime thereafter following an extension or modification hearing, M.G.L. c. 209A § 3C requires that the individual’s license to carry firearms remains suspended (and any firearms may not be returned or possessed) for as long as the restraining order remains in place. As such, any firearms or firearms license may not be returned until the 209A order is vacated.
However, although an individual who was the subject of the now-vacated 209A restraining order may petition the Chief of Police to reinstate of a license to carry firearms, the Police Chief is not under obligation to do so. In Howard v. Chief of Police of Wakefield et al. (59 Mass. App. Ct. 901, 2003) the Appeals Court upheld the Police Chief’s determination that a 209A Abuse Prevention Order issued by a Judge, after a hearing, represents a finding that the individual poses a threat of violence, and that the expiration of the 209A does not erase the fact that the individual has a history of being found post a threat of violence. Since the chief has broad discretion to determine the suitability of an individual to possess a firearms license, the Chief or other licensing authority may consider this information as relevant to his determination as to reinstate the license.
Being the subject of a 209A Restraining Order may cause you to lose your firearms rights for life, and has significant implications as to your property rights, as well. Some licensing authorities may be willing to extend licenses to individuals who are no longer the subject of an abuse prevention order, but it is at the discretion of the licensing officer. Additionally, with even a small firearms collection the value of the confiscated weapons could be thousands of dollars, and larger collections could be valued at hundreds of thousands of dollars. The legal requirement to surrender such property immediately upon the issuance of a restraining order could have significant financial consequences. It is important that, if you are served with a restraining order, you immediately contact an attorney to both protect your rights, your property, and ensure compliance with the law.
For more information about firearms licensing laws, applications, renewals and appeals visit our firearms website.
Saturday, April 6, 2013
Sharing is Caring - Tumblr and QR Codes
At Kelsey & Trask, P.C. we try to use the latest technology to stay current on the newest laws, to help our clients communicate with us more efficiently and to stay connected with our friends, other professionals and our clients. You probably already know how to find us on Facebook, LinkedIn and Twitter, and to download our iPhone Apps.
And now we've added two more ways to connect with us faster: QR Codes and a Tumblr page.
QR Codes:
A QR Code is a two-dimensional barcode readable on any smart phone with a camera. Just download a QR Code Reader (I use Neo Reader, which is free) and you can use the camera in your phone to read the Code. For example, if you scan the Code to the right you would be taken to our mobile News & Media webpage.
We've also incorporated QR Codes into our latest business cards (pictured below). If you scan the Codes on our business card you will be taken to our mobile contact page. From there you can get directions to our office, call us, or download our contact information straight to your phone's contacts (via VCard downloadable on most phones).
For some other examples of how business are integrating QR Codes into their business cards check out dzineblog's 20 QR Code Business Cards Design Inspiration. To generate your own QR Codes for free online we use delivr's QR Code Generator.
Tumblr:
Tumblr is the latest in sharing online, allowing users to share blog posts, photos, videos, and links quickly and easily. You can follow other Tubmlrs and repost their content, just like on Twitter, but unlike Twitter you can share more than 140 characters.
To follow us on Tumblr visit kelseytrask.tumblr.com. If you have a tumblr login then click on follow in the upper right hand corner to have our content streamed right to your tumblr dashboard.
And now we've added two more ways to connect with us faster: QR Codes and a Tumblr page.
QR Codes:
We've also incorporated QR Codes into our latest business cards (pictured below). If you scan the Codes on our business card you will be taken to our mobile contact page. From there you can get directions to our office, call us, or download our contact information straight to your phone's contacts (via VCard downloadable on most phones).
For some other examples of how business are integrating QR Codes into their business cards check out dzineblog's 20 QR Code Business Cards Design Inspiration. To generate your own QR Codes for free online we use delivr's QR Code Generator.
Tumblr:
To follow us on Tumblr visit kelseytrask.tumblr.com. If you have a tumblr login then click on follow in the upper right hand corner to have our content streamed right to your tumblr dashboard.
Tuesday, April 2, 2013
Custody Reform: H.1330 - Can Court Ordered Mediation be Effective?
HO1330 is the second House bill which proposes to make amendments to the current custody statute. This proposal was also filed in the House on January 20, 2011 and referred to the Joint Committee on the Judiciary on January 24, 2011.H.1330 – Legislation relative to the determination of the legal custody of children in court cases.
Unlike the first House bills we reviewed (H.1306), this proposal doesn't change the best interest standard, but still adds a presumption of temporary shared physical custody.
This bill begins by deleting the current statute and replacing it entirely, however much of the text remains the same. The definitions of custody remain in the proposed bill, as does the presumption of temporary shared legal custody.
The bill adds the "rights of the parents" to the factors that the court should consider in creating parenting plans. The proposal keeps the language allowing the Judge to consider adverse affects of the past or present living situations but adds language requiring the court to consider "who was responsible" for this conduct. The addition is understandable, but from a practical standpoint if the court was considering negative conduct then who was at fault was already being considered as well.
Temporary Shared Physical Custody and Required Dispute Resolution
The bill also adds a presumption of temporary shared physical custody, and still allows a Judge to order sole custody if shared custody is not in the best interest of the child with the addition of requiring written findings of any such decision. This means that the standard is not changed but that the Judge must specifically write in the order how they applied the standard.
The next section of the proposed bill makes the most significant change to the current statute, by adding more specific language as to what factors the court should consider in denying shared custody:
In determining whether temporary shared legal and/or physical custody would not be in the best interest of the child, the court shall consider all relevant facts including, but not limited to, whether any parent abuses alcohol or other drugs, has deserted the child or alienated the children toward the other parent; but a history of the parties inability to cooperate will not be determinative of the issue of custody. If there are facts of a lack of cooperation or by agreement of the parties, the agreement or order must contain a provision for resolution of matters of dispute in the future during joint legal or physical custody by final alternative dispute resolution a) arbitration in accordance with the provision of c. 105C in this court, b) by agreement, or c) presentation of the issue in dispute only to the probate court by complaint pursuant to c. 231A for future resolution and an enforcement order. Such alternative dispute resolution must be tried and fail before a modification can be entered in this regard. Orders described herein after hearing or trial and or an agreement enforced by the court shall be considered a final judgment notwithstanding future dispute resolution provisions are included therein. In addition it shall be grounds for modification of custody and the awarding of counsel fees to the other party, if a parent is found to have persistently and/or in bad faith, failed to carry out the terms of the said joint custody order or engaged in parental alienation in regard to the other parent with a child.
In addition to enumerating more specific factors, this section requires dispute resolution, and wouldn't allow the court to deny shared custody because of one parents failure to cooperate with communication. This is a major complaint about the current statute. The motivation behind requiring better communication and better efforts towards communication is noble, but the practical implementation of this section may not be realistic.
Unless the Courts can budget for dispute resolution services (unlikely), then many litigants will not be able to afford the required dispute resolution services. In principal this is a statutory recognition of a failure of the court to properly resolve these matters, and in that way feels like an admission of failure. Wouldn't it be better to improve the court system than to require people go elsewhere?
One possible compromise, for example, would be to allow Judges the authority to appoint Parent Coordinators. Another possible solution would be to revamp the required Parenting Course to include dispute resolution training.
Restraining Order Presumption
This proposed bill also makes changes to the language relating to restraining orders in the original custody statute. We have already discussed our concerns about proposals which delete this standard altogether (or in some cases reverse it). In this case, this proposed bill offers a compromise between keeping the presumption and deleting it:
If despite a current or permanent restraining order against one parent pursuant to chapter two hundred and nine A being in effect, the court orders shared legal or physical custody either as a temporary order or at a trial on the merits, the court shall provide written findings to support such shared custody order and cause the 209A order to be amended in regard thereto. The denial, or vacating of such an order first issued in a prior 209A matter by any court, shall be binding on this court, and the facts alleged or which could have been alleged, shall not be permitted to be considered again in regard to its custody or visitation determinations under this section. The definition of ‘abuse’ shall be the same in custody and visitation matters as defined by c. 209A.
This paragraph would keep the presumption against shared custody when a 209A order is currently in effect. But if the 209A order is denied or vacated, that decision shall be binding on the Family Court and the alleged facts cannot be then reiterated in the custody hearing. This change makes an attempt to weigh the desire to protect children from abusers, with an attempt to protect the wrongly accused from having to defend themselves in multiple courts from allegations already found false by a previous court.
There are still some potential problems with this compromise, though. If a 209A request is vacated or denied, this only means the facts presented don't rise to the level to require Protection from Abuse. This doesn't mean the facts are necessarily false or irrelevant for custody determinations. For instance, what if a mother requests a 209A because the father is a drug addict and the mother is in fear because of the unpredictable nature of his addiction. A Judge could reasonably find, without more evidence of past physical violence or threats of violence, that drug addiction is not enough to warrant a 209A Protection from Abuse. Under a strict reading of the proposed language, the facts presented at the 209A hearing can not then also be considered by the Family court in custody determinations, even though they are clearly relevant.
The intent of this proposed language is good, but the application could be impractical. There is a way to draft the language to reach a compromise more appropriately. For example, rather than disallowing the entry of the facts in evidence, the requirement of written findings is deleted if the 209A is denied or vacated and the presumption for shared custody remains in this case. This would be an appropriate compromise that wouldn't keep the Judges from hearing relevant evidence, but still prevent parties from using false restraining orders to obtain a custody presumption.
Permanent Shared Physical and Legal Custody:
The proposed bill keeps the requirement for the submission of parenting plans at trial if there is a custody dispute, but adds a requirement that said plans contain dispute resolution provisions. In addition, the proposed bill would add a presumption of shared legal and physical custody at trial:
There shall be a prima facie presumption in favor of shared legal and physical custody in determining final custody and visitation on the merits, at trial by agreement and/or at a hearing.
In addition, the standard for overriding a joint plan proposed by the parties is significantly higher under this bill:
If the plan is submitted by the agreement of the parties jointly, the court may not reject such a joint custody plan submission and issue a sole legal and/or physical custody award, unless there is a preponderance of the evidence submitted sufficient to overcome the presumption of shared custody or to support an amendment to the joint plan, and the court issues findings of fact and law giving its reasons for such actions.
As discussed in previous posts, Judges don't usually deny jointly created custody plans anyway, so raising the standard is unnecessary but also a non-issue.
Child Support
The proposed bill also reverses the Child Support section to require reconsideration if there is a change to shared custody:
An award of shared physical custody shall be considered in determining the amount of child support owed by either parent based on the time the children are supported by either of them when in their residences under the plan and the economic circumstances of the parties. An order of shared custody shall constitute grounds for modifying a prior support order based on sole custody if there is a demonstrated economic impact that is a sufficient basis to warrant modification, or may be the basis for changed orders during joint custody if the economic circumstances of either of the parties shall change in the future.
This is consistent with the current Child Support Guidelines and makes more sense than the current statute.
Finally, the proposed bill also adds the preponderance of the evidence standard to the appeals section C. 215 Section 9.
Conclusion:
Good Intentions, Bad Law. The premise of many of the changes made her makes sense, and we even support the attempt to compromise on the controversial restraining order issue. However, the language of the proposed bill creates impractical requirements to accomplish these changes. The restraining order section should be rewritten, and there should be greater investigation into the best way to foster conflict resolution (other than required dispute resolution services).
This bill is a step in the right direction (and better than most we've reviewed so far), but still needs some work to have the practical effect intended.
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
Friday, March 22, 2013
Will Child Support Change if I have a Second Family (or Eighth Family)?
The Child Support Guidelines in Massachusetts include the following provision:
Antonio Cromartie has a lot to say about the upcoming Patriots/Jets Divisional Playoff Game, but is less eloquent when it comes to remembering the names of his nine children (with eight different mothers). This video from Toucher & Rich (of Boston's 98.5 the Sports Hub) points out Cromartie's shortcomings in song:
"Obligations to a subsequent family may be used as a defense to a request to modify an order seeking an increase in the existing order but such obligations should not be considered a reason to decrease existing orders."In short, this means that you cannot request that the Court reduce your child support because you chose to have more children (although you can defend a request for an increase on this basis). This could be really bad news for someone who is apparently unaware of birth control like New York Jets cornerback, Antonio Cromartie.
Antonio Cromartie has a lot to say about the upcoming Patriots/Jets Divisional Playoff Game, but is less eloquent when it comes to remembering the names of his nine children (with eight different mothers). This video from Toucher & Rich (of Boston's 98.5 the Sports Hub) points out Cromartie's shortcomings in song:
Wednesday, March 20, 2013
It's a Mad, Mad World: Uncomfortable Praise for the Evolution of Divorce Law in the United States
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| Mad Men Season 3 Episode Photos Mad Men Season 3 Episode Photos Photo Gallery Don Draper (Jon Hamm) in Episode 13 |
The show's main character, Don Draper, is a professionally successful advertising executive with a lifestyle which includes a serious drinking problem and many extra-marital affairs. His wife, Betty, had been a model, but stopped working to care for their children after their oldest was born. After discovering one of Don's affairs, and finding out that he was actually living under someone else's name, and that he had previously been divorced in California, she went to her father's estate attorney to ask about her options regarding a divorce. The following is the dialogue between Betty and the attorney, fictionally set in 1963 (from the season finale of Season 3):
Attorney: "What do you want to do? Do you want a divorce? In New York State you need to prove adultery. Can you?"
Betty: "Maybe."
Attorney: "I mean prove it in a court of law. That's hard to do, unless he wants out, but you're not going to get anything. You won't even be able to buy [your brother] out of [your father's] house, so you'll have to sell it. And, he can take the children. That's my legal advice. You want the rest of it? Are you afraid of him?"
Betty: "No."
Attorney: "Is he a good provider?"
Betty: "Well, he is but that's not the point. It's a lie so big, Milton. I feel like I've been in some dream since I found out. Just saying it out loud to you is ... the first time I'm realizing it's true."
Attorney: "You have three small children together. At least, go home. Give it a try. That's what I'd tell my own daughter."
At the time of this fictional dialogue, No-Fault divorce had not yet become available in most states. New York became the last state to allow for No-Fault divorce in 2010. Massachusetts, by contrast, has had No-Fault divorce for over thirty years.
No-Fault divorce makes proving a wrong, such as adultery, unnecessary in a divorce proceeding. Since No-Fault divorce became common, divorce cases have shifted their focus from what a husband or wife has done wrong to accepting that individuals should have the ability to exit a marriage if they feel that it has irretrievably broken down, and figuring out how to sever some of the ties that bind a couple.
Other than the procedural requirement that something fault-based be proven in court, the two points that the attorney makes that are diametrically opposed to modern divorce law is the idea that Betty would not get anything, and that Don would get the kids. Modern divorce law is designed to (it doesn't always work out this way, but it is designed to) minimize the transition for any children in the midst of a divorce. Judges like to keep children in as stable position as possible. The idea of having three young children taken away from their stay-at-home mother to reside primarily with their father and his long hours and drinking problem, without much evidence that the children would be better off with him than with their mother, is unlikely in a modern divorce. Further, the revolution (and evolution) of alimony, property division, and child support within the context of a modern divorce would make it very unlikely that Betty would be left without many assets or support from Don to continue their upper middle class lifestyle.
Lastly, and this might be more the issue of a Hollywood script than a historically accurate portrayal of how attorneys spoke to potential clients about divorce fifty years ago, it is inappropriate for an attorney to try and convince a potential client to either obtain or refrain from obtaining a divorce. That is a personal decision that should be made only by the individual.
What is considered "fair" is fluid. Views on politics, ethics, gender relations, and many more issues vary over the course of time, and vary among different cultures within the same time. From this divorce practitioner's viewpoint, the modern divorce is generally "fair" given what that term carries in early twenty-first century Massachusetts, at least far more than what it was fifty years ago.
Friday, March 15, 2013
Does Reducing and Limiting Alimony Force Primary Caretakers into the Workforce?
When a child is born into a marriage that later dissolves, child support may be ordered, and usually is. The purpose of child support for children born into a marriage, or out of wedlock, is identical: to provide for the financial costs of raising a child.
However, when marriages dissolve, the finances of the couple might be such that a court will order alimony as well. The purpose of alimony is to provide for the financial well-being of a former spouse. The issue of alimony always has been, and will likely always be, controversial. The rationale behind it is that in a marriage, both people contribute in (ideally) complementary ways. When one spouse devotes time to furthering his or her career, it is (ideally) with the contribution of support from the other spouse. For example, if one spouse is picking up extra hours at work to get a promotion, he or she is doing so while his or her spouse is taking care of the home, or the kids. Often times, one spouse is not as able to further his or her career while their partner does. When the marriage dissolves, courts want the spouse who was not as able to further his or her career to smoothly transition into a financially independent unit, and the tool through which this is accomplished is alimony.
In Massachusetts, alimony is still officially a matter of great discretion for judges. The Alimony Reform Act of 2011 does not become effective until March 1, 2012, although many judges are issuing orders consistent with its new limits. The Act, for the first time in Massachusetts, creates a formula for calculating alimony, much like the existing child support guidelines in Massachusetts. One of the more important provisions of the Alimony Reform Act is that no income included in the calculation of child support will be then included in a calculation of alimony. The child support guidelines in Massachusetts are limited to a combined income of $250,000. Thus, unless the combined income in a marriage where there are minor children is more than $250,000, absent circumstances that would convince a judge to vary from the formulas, there will be only child support and no alimony order (provided that the lesser earning spouse is the primary caretaker of the minor child or children -- judges still have a good deal of discretion, and I would encourage you to speak to an attorney if you have any questions or concerns about your specific case).
This muddies the waters a bit from the varying justifications for child support (provide for the child) and alimony (provide for the former spouse). One justification for this is attrition. For couples earning less than $250,000 combined, there is usually not enough income to justify both child support and alimony. What the court will label as "child support" (and the IRS and Department of Revenue will treat as "child support") does assist the primary caretaker into transitioning into a financially independent unit.
However, it is not enough to provide for the economic quality of life enjoyed during the marriage. When a couple divorces, the expenses once shared (one home, one electricity bill, etc.) are now separated. Now there are two homes to pay for, and two electricity bills. Even if the combined income stays the same, the combined expenses will increase. For many individuals, receiving child support will not be enough. They will need to transition back into the workforce, or focus more time on increasing their income to meet their expenses. The "child support" will provide a measure of financial security to the recipient spouse as he or she transitions to devoting more energy towards furthering his or her career. This, unfortunately, comes at the cost (usually) of spending time at home with the children.
Wednesday, March 6, 2013
Beautiful Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Character and Empathy
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List Price : $27.00 Price : $12.75
List Price : $27.00 Price : $12.75
Product Description
NATIONAL BESTSELLER
Being a teenager has never been easy, but in recent years, with the rise of the Internet and social media, it has become exponentially more challenging. Bullying, once thought of as the province of queen bees and goons, has taken on new, complex, and insidious forms, as parents and educators know all too well.
No writer is better poised to explore this territory than Emily Bazelon, who has established herself as a leading voice on the social and legal aspects of teenage drama. In Sticks and Stones, she brings readers on a deeply researched, clear-eyed journey into the ever-shifting landscape of teenage meanness and its sometimes devastating consequences. The result is an indispensable book that takes us from school cafeterias to courtrooms to the offices of Facebook, the website where so much teenage life, good and bad, now unfolds.
Along the way, Bazelon defines what bullying is and, just as important, what it is not. She explores when intervention is essential and when kids should be given the freedom to fend for themselves. She also dispels persistent myths: that girls bully more than boys, that online and in-person bullying are entirely distinct, that bullying is a common cause of suicide, and that harsh criminal penalties are an effective deterrent. Above all, she believes that to deal with the problem, we must first understand it.
Blending keen journalistic and narrative skills, Bazelon explores different facets of bullying through the stories of three young people who found themselves caught in the thick of it. Thirteen-year-old Monique endured months of harassment and exclusion before her mother finally pulled her out of school. Jacob was threatened and physically attacked over his sexuality in eighth grade—and then sued to protect himself and change the culture of his school. Flannery was one of six teens who faced criminal charges after a fellow student’s suicide was blamed on bullying and made international headlines. With grace and authority, Bazelon chronicles how these kids’ predicaments escalated, to no one’s benefit, into community-wide wars. Cutting through the noise, misinformation, and sensationalism, she takes us into schools that have succeeded in reducing bullying and examines their successful strategies. The result is a groundbreaking book that will help parents, educators, and teens themselves better understand what kids are going through today and what can be done to help them through it.
Praise for Sticks and Stones
“Intelligent, rigorous . . . [Bazelon] is a compassionate champion for justice in the domain of childhood’s essential unfairness.”—Andrew Solomon, The New York Times Book Review
“Immersive storytelling with a sturdy base of science underneath, [Sticks and Stones] draws its authority and power from both.”—New York
“Thoughtful and moving, incisive and provocative, Sticks and Stones is essential reading for any educator trying to negotiate the minefield of bullying. Packed with valuable advice, the book brings a welcome dose of sanity to an often overheated national discussion.”—Paul Tough, author of How Children Succeed
“Beautifully written and tenaciously reported, Sticks and Stones is a serious, important book that reads like a page-turner. Emily Bazelon is a gifted writer, and this powerful work is sure to place childhood bullying at the heart of the national conversation—right where it belongs.”—Susan Cain, author of Quiet
Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Character and Empathy Reviews
Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Character and Empathy Reviews
| 37 of 51 people found the following review helpful  Must-read analysis of the problem of bullying - and some solutions, By This review is from: Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Character and Empathy (Hardcover) Customer review from the Amazon Vine™ Program ( What's this?) This is a must-read book for anyone who cares about teenagers. Bazelon carefully explores issues relating to bullying, avoiding blame or hyperbole to present thoughtful and textured pictures of what the problem is (and, perhaps more significantly, what it is not) and sharing success stories from schools trying hard to protect kids.I should disclose some personal biases here. In late 2008, I bought my first home, a small place in South Hadley, Massachusetts, just a few blocks from the high school. I live on a quiet street in a quiet town where, for the most part, nothing significant had ever happened. Then, in January 2010, a young woman named Phoebe Prince killed herself after being bullied, and my quiet town turned into the bullying capital of the world. People here were shocked at the tragedy, and many community members came together to mourn. Before long, though, my neighbors and I got used to reporters all over the place, especially when six students were criminally... Read more  Not very helpful, By This review is from: Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Character and Empathy (Hardcover) It's nice that Emily Bazelon can see everything from the perspectives of the bullied and the bullies, and can tell us that most situations are not cut-and-dried. She can easily and breezily reassure us that it's not always possible to determine who deserves sympathy and who serves reproach. and she can remind us that most bullying is about maintaining status, not about picking on the loners.Mmmm-kay. That's all nice. I'm glad she has a heart full of empathy for bullies and bullied alike. But her action items? "We" need to "do something". Ohhhhhhhhhh. "We" need to "be smart in our choice of strategies." Tell me more. "We" must "resist the rush to judgment when a bullying story goes viral." And best of all, "It's wrong to fault parents." And, apparently, school administrators. Know what would clear this up? Provide your child some micro recording devices, and capture the incidents on film. Capture the responses... Read more 15 of 23 people found the following review helpful Intimate stories of sadness and hope, and so much to learn from them, By Jennifer Rachel (USA) - See all my reviews Amazon Verified Purchase This review is from: Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Character and Empathy (Hardcover) As the mom of a young boy who is the smallest in his class, I was very eager to read this book. I was hoping for insights into what bullying is (compared to just kids being kids), and how to deal with it. I was especially curious about online bullying/cyberbullying. What I got was much more -- about the problem itself and the many forms it can take, about the typical reactions of parents and administrators, and about the range of solutions that can actually make a difference. I also didn't expect a book about bullying to be a page-turner, but it really was because the stories are so personal.I was surprised to learn that much of what parents and teachers do to try to address a bullying issue is often not very helpful (or worse). Bazelon makes it clear why this is true by describing very detailed accounts of real people dealing with real events. And her conclusions are solidly based on experience, science, and the law - a compelling combination. It's clear after reading... Read more |
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Sunday, March 3, 2013
Alimony Reform Recommendations
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.
The Boston Bar Association has unanimously voted to endorse the Report of the Joint MBA/BBA Alimony Task Force: Alimony or Spousal Support Guidelines where there are no Dependent Children.
The Report recommends an alimony cap based on a formula. It also recommends durational limits on alimony and lists specific instances where the recommendations would not apply, such as cases where the recipient is so disabled as to become a ward of the state.
The Report also allows for deviation based on certain factors, which include cohabitation.
As indicated in a previous Alimony debate post, this is the type of reform that we believe would be an improvement over the current state of alimony in Massachusetts (especially as compared to the currently proposed reforms in the Senate and House bills).
If you have an opinion on which solution is best, vote here.
The Boston Bar Association has unanimously voted to endorse the Report of the Joint MBA/BBA Alimony Task Force: Alimony or Spousal Support Guidelines where there are no Dependent Children.
The Report recommends an alimony cap based on a formula. It also recommends durational limits on alimony and lists specific instances where the recommendations would not apply, such as cases where the recipient is so disabled as to become a ward of the state.
The Report also allows for deviation based on certain factors, which include cohabitation.
As indicated in a previous Alimony debate post, this is the type of reform that we believe would be an improvement over the current state of alimony in Massachusetts (especially as compared to the currently proposed reforms in the Senate and House bills).
If you have an opinion on which solution is best, vote here.
Wednesday, February 27, 2013
Should I pay for my divorce with a Credit Card?
In many cases when a client pays with a credit card it just a matter of convenience or adding to their "miles". However, in some cases, it is because they have no other option. Going into debt to pay for your divorce attorney's costs should be done very cautiously. While we believe that an attorney can provide a great benefit to parties in a divorce case, that benefit must be balanced against the cost of those services. You don't want to end up figuratively paying for your divorce because you didn't get advice, or got bad advice, but you also don't want to literally being paying for your divorce for years if you can avoid it. Here are some basic tips to avoid going into debt for your divorce:
Try to Keep Costs Down
You can assist your attorney in many ways, for instance by providing them timely with documents and information they request. The better and more efficiently you communicate with your attorney, the lower your overall bill will be.
Make Business Decisions
While some decisions in a divorce are not financial, such as deciding on a parenting plan, most of the decisions that must be made do relate to your assets, debts, expenses and income. Be conscientious of the fact that every dollar you spend on your attorney is one less dollar left in your marital estate. If you can limit the issues in your case to less than you will spend on your attorneys to fight, then you should be able to settle quickly. We call this making a "business decision" rather than an emotional one because in business we often must make choices that are not perfect but make financial sense.
Even in cases that involve non-financial issues, there may be cheaper more efficient ways to reach a settlement, such as using a parent coordinator or mediator to settle a parenting plan rather than taking your custody fight to trial.
Make a Plan for the Future
Finally, one of the most powerful ways to get over the emotion of a divorce and reduce the cost is to think about what you want your life to look like 1, 2 or 5 years from now. Making a plan for the future, will help you decide on the best settlement of your case, and will require you to consider how the cost of your divorce will affect that plan.
Credit Cards can be a tool to help you move on with your life, but stay mindful of how you use them and make sure that the costs you are agreeing to pay fit into your budget.
At Kelsey & Trask, P.C. we do accept credit card payments with one exception (debtors in a bankruptcy case cannot pay for our fees by using their credit card).
Saturday, February 23, 2013
Are Sex Tapes and Indecent Photos Marital Property?
Unfortunately, I have had the uncomfortable experience of dealing with indecent photos and sex tapes in a few cases. Although divorcing clients will sometimes consider these photos or videos negotiating chips, these tactics can often backfire. In a recent NY Times article, a couple's argument over alleged threats to expose their sex tapes have made their divorce a public spectacle.
In a divorce case, my advice has always been simple and common sense on this issue. Photos of individuals should be returned to those individuals. Videos or photos of multiple parties should be destroyed by mutual agreement on method. Any other outcomes will leave one party exposed and potentially hurt or angry. These types of emotions lead to difficult, unsettleable, and therefore expensive and lengthy cases. In the long run, the only people who profit from difficult cases are the lawyers. So if you want to simplify your divorce case, then deal with a potentially distasteful past in a tasteful and respectful way.
In a divorce case, my advice has always been simple and common sense on this issue. Photos of individuals should be returned to those individuals. Videos or photos of multiple parties should be destroyed by mutual agreement on method. Any other outcomes will leave one party exposed and potentially hurt or angry. These types of emotions lead to difficult, unsettleable, and therefore expensive and lengthy cases. In the long run, the only people who profit from difficult cases are the lawyers. So if you want to simplify your divorce case, then deal with a potentially distasteful past in a tasteful and respectful way.
Friday, February 15, 2013
If I leave the House, will I lose my Financial Interest?
In many divorce cases, the initial fight is over who will leave the house. In cases where the parties own the home, the first person to leave is often very concerned that the spouse remaining behind will have a financial advantage. While there are some potential financial advantages to the party that remains behind, in most cases they are minimal when compared to the quality of life improvement one experiences by leaving a stressful living situation.
The potential financial advantage is primarily the use of the house during the pendency of the divorce action, which may have some financial benefit depending on how the bills of the house are split during the separation. There is also the immediate expenses for moving and replacing any furniture or other necessities, but unless one party buys the other out from the house both will eventually have this cost.
There are potential problems with one party controlling the property, for instance they can make it more difficult to show to potential buyers or fail to perform necessary repairs and upkeep. If you believe these are a serious risk, you may want to agree to orders on these issues before leaving the house. A solid written agreement can prevent most of the financial problems that might arise by leaving the home before the divorce is final, or at least provide for mechanisms to compensate one party if there are issues. If you are unsure of what you should do in your situation, you should consult with an attorney to discuss the specifics of your case.
The potential financial advantage is primarily the use of the house during the pendency of the divorce action, which may have some financial benefit depending on how the bills of the house are split during the separation. There is also the immediate expenses for moving and replacing any furniture or other necessities, but unless one party buys the other out from the house both will eventually have this cost.
There are potential problems with one party controlling the property, for instance they can make it more difficult to show to potential buyers or fail to perform necessary repairs and upkeep. If you believe these are a serious risk, you may want to agree to orders on these issues before leaving the house. A solid written agreement can prevent most of the financial problems that might arise by leaving the home before the divorce is final, or at least provide for mechanisms to compensate one party if there are issues. If you are unsure of what you should do in your situation, you should consult with an attorney to discuss the specifics of your case.
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