College: Is it the Right Choice?

In Massachusetts, Probate and Family Court Judges have the authority under the child support statute to order divorcing parents (or unwed parents of children involved in paternity cases) to pay for college education expenses for their children.

Unfortunately, this can lead to expensive litigation when one parent is unwilling to accept (or to tell their child) that certain colleges are too expensive for their family budget.

Even worse, it seems to have become a foregone conclusion that most (if not all) children should go to college. Check out these great thoughts from The Imperfect Parent Blog, too many people (especially in the Probate & Family Court) are afraid to say this:

Kids, Don't Go To College:

"Why are we pushing college on every kid when not every kid is cut out for it? There’s no shame in not going to college, in fact, going to college just may be a waste of time for most high school grads. And if you listen to some talking radio heads, it may just be a colossal waste of money too.

Currently around 65% of high school students are college-bound and some experts are calling for a re-examination of college level education and what it actually gets you these days. Furthermore, as more and more jobs are now being outsourced overseas, a college degree creates a certain dichotomy — while corporations expect and require degrees for jobs in which college degrees aren’t even necessary, like sales positions, conversely, skilled laborers or technicians only require more expedient training through trade schools. One clear benefit of these tradesmen skills is that most of them can’t be outsourced overseas.

For example, I’m an Account Manager for a hospital. Nothing in my 50k waste of a college education prepared me for what I’m doing. What it did do is get me a foot in the door for an administrative position some 17 years ago, where I worked my way up. The rest has been on the job the training. Never have I had to pull from my college textbooks, lectures, assignments or tests to understand how to manage coordinating people’s health benefits in my current position. One has to wonder, what is the point of a B.A. if all you need for is to weed out people that are perhaps more qualified but couldn’t afford to go to college?

Often times I regret not just going to a trade school or becoming a nurse, medical technician or even a paralegal. I could have completed many of those certifications in 2 years or less, instead I wasted 5 years (yes, I was on the 5 year program) of balancing missing classes to hang out in Grant park with my friends while still meeting the minimum requirements to get passing grades.

Welders, electricians, carpenters, plumbers — their all jobs that can’t be outsourced, yet my job can be. So who’s the real chump here?

As www.bluecollarandproud.com points out, these tradesmen are not your grandparent’s skilled labor workers. Many of these trade schools require some critical thinkers, like welders, who deal with complex mathematical equations to figure out trajectories and angles.

While not all kids are cut out for the trades just as all kids are not cut out for universities, the future of the tradesmen just might translate to job security and skills that seem to be lost on younger generations. When and if my children want to go to college, I will be there to support them emotionally and financially (as much as I’m able), but I won’t make them go. I hope they understand all their options, unlike my parents, who pretty much said, “Go to college or I’ll never speak to you again.” "

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.

Divorce in Massachusetts: 5 Things You Need to Know to Get Started

There are five questions you will need to answer to get started with a divorce in Massachusetts:
1. CAN you file for divorce in Massachusetts?
2. WHY are you getting divorced?
3. HOW will you get divorced?
4. WHO can help you get divorced?
5. WHERE will you get divorced?

We answer each of these questions below:

1. CAN you file for divorce in Massachusetts?
If you have been a resident of Massachusetts for one year then you can file for divorce in Massachusetts. Even if you have not been a resident for one year, you still may be able to file for divorce in Massachusetts but it may be complicated to determine.

We created an infographic to clarify the confusing question of jurisdiction over a divorce case in Massachusetts by consolidating the statutes and case law into one chart available here: Can I file for divorce in Massachusetts? An Infographic.

Just because you can file for divorce in Massachusetts, however, does not necessarily mean the court has jurisdiction over all issues in your case, as we explain in greater detail here: Can I be sued for Divorce in Massachusetts if I don't live there but my spouse does?. If your case involves residency, property, or children living in multiple states, you should definitely consult with an attorney because these issues can present complicated determinations and possibly multiple court cases.

If you have determined that you can file in Massachusetts, you now have to answer:


2. WHY are you getting divorced?
There are three different statutes in Massachusetts that provide grounds upon which the Probate & Family Court can grant you a divorce.

The Fault Statute: M.G.L. ch. 208 § 1 authorizes the Courts in Massachusetts to grant divorces to residents of Massachusetts for a specific list of "fault" situations: adultery; impotence, desertion continued for one year; gross and confirmed habits of intoxication caused by voluntary and excessive use of intoxicating liquor, opium, or other drugs; cruel and abusive treatment; imprisonment; or, if a spouse being of sufficient ability, grossly or wantonly and cruelly refuses or neglects to provide suitable support and maintenance for the other spouse.

These are called "fault" divorces because obtaining a divorce for any of these reasons requires that you first prove that one spouse has caused the divorce by doing one of the things listed, i.e. it is "their fault" that the marriage has broken down.  It is unusual under the current state of Massachusetts law to file for "fault" divorces because they require this extra evidence of fault before a divorce can be granted.

The No-Fault Statutes: M.G.L. ch. 208 § 1A and M.G.L. ch. 208 § 1B authorize the Courts in Massachusetts to grant divorces to residents of Massachusetts for "an irretrievable breakdown of the marriage." The irretrievable breakdown standard simply requires that the Court find that at least one of the parties in the marriage believes (subjectively) that their marriage is over and that there is no chance of reconciliation.

If you are filing for a No-Fault Divorce (the most likely option) then you may not have to litigate your case.  There are other (oftentimes better) options for:


3. HOW will you get divorced?
There are four paths you can take to get divorced: Direct Settlement Negotiation, Litigation, Mediation, or Collaborative Divorce.  We created an infographic to help you visualize the different tracks you can take, and how you might end up moving from one track to the other (as well as some of the waypoints along the way):  The Divorce Roller-Coaster: An Infographic of Options.

Each path has strengths and weaknesses and we examined some of these in the following posts:

Mediation, Collaborative Law or Litigation: What's your Vote?

The Cleavers Divorce: A Mediation

The Huxtable's Divorce: A Collaborative Divorce

The Honeymooner's Divorce: A Litigation Case

To learn more about the pros and cons of each option visit our: Litigation site, Mediation site, or Collaborative Divorce site.

Regardless of which of these paths you believe is best for your case, you will likely benefit from some help:


4. WHO can help you get divorced?
An attorney can help you with all of the steps in the divorce process. An experienced Massachusetts divorce attorney can answer or help you answer all of the questions raised at the beginning of your case (as covered in this post); help guide you through the process that you choose; assist you in drafting necessary documents, negotiating and presenting your case; and prepare and explain any settlements in your case. You can hire an attorney to help you with all of these elements of your case, or just parts of your case (through Limited Assistance Representation).

In addition, whatever path you choose to get divorced, there are many instances where other professionals can assist in moving a case forward and reduce the cost spent on attorney's time as described in our post: Besides an Attorney, what professionals might be involved in my Divorce case?

And finally, even once you've answered the who, what, why and how, you still need to know:


5. WHERE will you get divorced?
In Massachusetts, the county that you file for divorce in is controlled by M.G.L. c. 208 s 6. You should file in the probate court in the county where either you or your spouse lives, unless one of you still resides in the county where you last lived together, in which case you should file in that county. For clarification on how to apply these rules, and to read about two exceptions to the rules, read this post: What County do I File my Divorce in? Click here for Directions and Phone Numbers to the Probate & Family Courts in each county.

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

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


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


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


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


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


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

How do I get protection from an abusive spouse?

In Massachusetts, there are three statutes which can provide protection from an abusive spouse.

As a preliminary warning, none of these statutes, nor any other piece of paper, can physically prevent someone from harming you. These laws only provide for extra penalties and orders to discourage such behavior. If you are in fear of being harmed, and don't think that anything will stop your abuser then you should call a Domestic Violence Program for help.

Despite the limitations of these orders, they can still be useful tools in discouraging, preventing and punishing abusive behavior. The three statutes that can be used by victims of abuse to obtain protection from an abusive spouse are:

1. M.G.L. c. 208, § 34B - Order to Vacate Marital Home

Authority: The Probate & Family Court may order a husband or wife to vacate the marital home as part of a divorce or separate support proceeding.

Standard: The Court may order the offending spouse to vacate "if the court finds, after a hearing, that the health, safety or welfare of the moving party or any minor children residing with the parties would be endangered or substantially impaired by a failure to enter such an order."

Time limitations: The Order to Vacate shall not exceed ninety days, but can be extended for an additional "certain period of time, as the court deems necessary or appropriate."

2. M.G.L. c. 209A - Abuse Prevention

Authority: If the Trial Court (usually the District or Probate & Family Court) finds abuse they shall order a family or household member to:

(a) refrain from abusing the plaintiff;
(b) refrain from contacting the plaintiff; and
(c) vacate and stay away from the household, multiple family dwelling, and workplace.

The Court can also award the plaintiff temporary custody of any minor children and provide for visitation or child support.

Standard: A family or household member includes persons who:

(a) are or were married to one another;
(b) are or were residing together in the same household;
(c) are or were related by blood or marriage;
(d) have a child in common regardless of whether they have ever married or lived together; or
(e) are or have been in a substantive dating or engagement relationship.

“Abuse” is defined as "the occurrence of one or more of the following acts between family or household members:

(a) attempting to cause or causing physical harm;
(b) placing another in fear of imminent serious physical harm;
(c) causing another to engage involuntarily in sexual relations by force, threat or duress."

Time limitations: "Any relief granted by the court shall be for a fixed period of time not to exceed one year. Every order shall on its face state the time and date the order is to expire and shall include the date and time that the matter will again be heard. If the plaintiff appears at the court at the date and time the order is to expire, the court shall determine whether or not to extend the order for any additional time reasonably necessary to protect the plaintiff or to enter a permanent order."

3. M.G.L. c. 208, § 18 - Pendency of action for divorce; protection of personal liberty of spouse; restraint orders authorized

Authority: In a divorce action, the Probate & Family Court may prohibit the husband or wife from placing any restraint on the personal liberty of the other.

Standard: The Court may "make such further order as it deems necessary to protect either party or their children, to preserve the peace or to carry out the purposes of this section relative to restraint on personal liberty."

Time limitations: Under Champagne v. Champagne, 429 Mass. 324 (1999), these orders may be permanent, until further order of the Court.

Child Tax Deductions: Who gets them in a Divorce?

On your Federal Income Tax Return you can claim an exemption for each qualifying child, which for the tax year 2011 will result in a $3,700 per dependent credit off of your taxable income.  Depending on your tax bracket this could save you as much as $1,295 in federal taxes.

But if you are separated or divorced and filing separate federal income tax returns, who gets the exemption?

First of all, you can't both take it.  Only one of the parents can use the exemption for each child on their return. If you both claim a child, the IRS will reject your return and send you a letter indicating that you must amend.

So which one of the parents gets to use the exemption?

Pursuant to IRS Publication 501, the IRS considers a child of divorced or separated parents in most cases to be the qualifying child of the custodial parent only.  The IRS defines custodial parent as "the parent with whom the child lived for the greater number of nights during the year. The other parent is the noncustodial parent."

It doesn't matter if your agreement says you share custody.  If one parent has the child more than 50% of the time, then that parent is the custodial parent as far as the IRS is concerned.  ("If the child lived with each parent for an equal number of nights during the year, the custodial parent is the parent with the higher adjusted gross income (AGI).")

It is possible, though, to transfer the exemption from the "custodial" parent to the "noncustodial" parent.  Some division of this benefit is often negotiated as part of a divorce agreement or ordered by a Judge, to give the noncustodial parent some tax credit in exchange for the child support that they pay from post-tax income.  In the case of one child, the exemption can be alternated from year to year, or when there are multiple children the exemptions can be divided between parents.

In order for this transfer to be allowed by the IRS, certain rules must be complied with.  According to Publication 501, a child can be treated as the qualifying child of the noncustodial parent if four requirements are satisfied:

1. The parents are divorced or legally separated under a decree of divorce or separate maintenance, the parents are separated under a written separation agreement, or lived apart at all times during the last 6 months of the year, whether or not they are or were married;
2. The child received over half of his or her support for the year from the parents;
3. The child is in the custody of one or both parents for more than half of the year; and
4. The custodial parent signs a written declaration,  Form 8332, that he or she will not claim the child as a dependent for the year, and the noncustodial parent attaches this written declaration to his or her return. (For cases prior to 2008 this requirement is slightly different and you should review Publication 501 further).

If you have a divorce agreement that states that the non-custodial parent gets the child's tax exemption, then Form 8332 must be completed or the IRS could reject the return.  If the custodial parent refuses to sign Form 8332 then you must file a Complaint for Contempt with the Probate & Family Court.  The IRS will not honor the divorce agreement without a signed form 8332.

Visit our site for more information on how to file a Complaint for Contempt.

Can a Restraining Order be Permanent?

In our last post we provided information on the three types of orders that can help protect someone from an abusive spouse.

In two scenarios these orders can be permanent:

An abuse prevention order under M.G.L. c. 209A, often referred to as a 209A or restraining order, can be ordered for any fixed period of time up to one year. If an ex-parte hearing (without the defendant) was held for the initial hearing, then another hearing will be set up within ten (10) days to give the defendant an opportunity to tell their side of the story. After that opportunity, the order can be extended for up to one year. At the extension hearing if the plaintiff appears, the court may extend the order for any additional time reasonably necessary to protect the plaintiff. This extension can be permanent if the circumstances warrant that decision.

In addition, pursuant to a divorce case under M.G.L. c. 208, § 18, the Probate & Family Court can order a husband or wife to refrain from placing any restraint on the personal liberty of the other. In Champagne v. Champagne, the Massachusetts Supreme Judicial Court determined that this statute allowed for permanent orders pursuant to the broad language stating "to make such further order as it deems necessary to protect either party or their children, to preserve the peace or to carry out the purposes of this section relative to restraint on personal liberty."