Thursday, January 19, 2017

Online Tool for Creating Parenting Plans

It is our hope that all families find a way to resolve conflict peacefully.  This is especially true when children are involved.  Divorced or separated parenting has many complications and the first is just deciding how to share time with a child from two separate households.  Developing a schedule can result in a lot of tension, especially if parents have trouble picturing how this new schedule will interact with their work schedules and the schedules of their children.

To help make this easier, we've created an online tool for creating parenting plans that is simple and easy to use:

We encourage parents, regardless of the process they are using to divorce, to use this form to assist in evaluating and settling custody disputes. The form allows you to choose between the Model Parenting Plan proposals or customize your parenting plan over a four week period by clicking directly on the form.  When you click on a section of the calendar it switches between Mom and Dad, and if you choose to print the calendar directly from the web it results in this user-friendly printable format:
We have also provided a gender-neutral version of this form for parents for whom that is more appropriate:

The form is not intended to convey a preference for one type of parenting plan over another, but instead to recognize that every family is unique and should develop a plan that fits their needs.  Every block in the worksheet can be toggled back and forth between parents so they can easily see what different schedules will look like.  We hope that this tool is used by parents and practitioners to assist in reducing family conflict.

If you have any questions about the form or want to provide us feedback please don't hesitate to e-mail us or call at 508.655.5980.

Monday, January 16, 2017

The Absurdity of Death & Divorce and the Importance of Professional Optimism

I recently discovered Reply All, which is a podcast that explores interesting and amazing stories about the internet.  I've been listening to past episodes and today I discovered Episode #2: The Secret, Gruesome Internet For Doctors, which focuses on the existence of an app for doctors called Figure One.  Figure One is essentially an Instagram of gruesome photos of bodily diseases and injuries posted by doctors, potentially for educational purposes but mostly just for story sharing.  What's really interesting about this app is how normal it seems to doctors and how abnormal/gross/scary it is to everyone else.

There are professions, like soldier or doctor, that deal with death and the fragility of life on such a regular basis that it becomes normal to them.  This creates a disconnect between what feels normal to a doctor and what feels normal to a patient.  The doctor has faced the absurdity of death in a way that the rest of us try to remain ignorant of.  Good doctors use empathy to bridge that gap.  They can't go back and unsee the things they've seen but they can try to understand that a patient doesn't have that same experience and doesn't want to have it.

We, the pool of potential patients, survive by not worrying constantly about the 100% likelihood of our eventual demise.  That blind optimism about our own moment-to-moment immortality is actually very similar to how most people view (or want to view) relationships.  As a divorce mediator/attorney I deal constantly with the death of relationships.  Like a doctor who may see thousands of different ways that people can die, I spend my days dissecting the remains of broken relationships.  For many divorce attorneys and mediators that familiarity with the end of relationships becomes our normal and can callous us to the raw emotion and loss that people feel at the end of a relationship.

This disconnect was highlighted for me recently when I heard about and visited the webpage for the Museum of Broken Relationships.  While many would see these exhibits as something sad or perhaps cathartic, my first reaction was that of a clinician, wondering the legal status of the personal property on display.  As I thought about it more, though, I was curious about what my clients would put in the museum.  Did I know any of them well enough to guess what the symbol of their break up would be for them?  Would asking them to think about that be helpful or too painful?

The Secret, Gruesome, Internet for Doctors and the Museum of Broken Relationships could both be viewed as cold reminders that all things come to an end, and if that's all they were then the only interest would be from clinicians or those with a morbid curiosity.  However, there is a benefit to collecting reminders of pain in one place and putting them on display.  Anything can become normal if you deal with it enough, but reminding ourselves of that makes us a little uncomfortable.  It reminds us that we weren't always jaded.  Knowledge of the underbelly of life doesn't mean you have to lose the capacity for hope and empathy.  In fact, a practitioner who knows the worst that can happen and still has hope is the best possible model for a person in pain.

When I teach mediation, I tell students that there are two important traits the mediator should bring to the mediation.  In addition to the skills a mediator must learn to help clients resolve their disputes, mediators must be curious and optimistic.  While curiosity helps the mediator get to the heart of the issue, optimism helps clients feel comfortable exposing their heart.  Even when people believe there is no way they can resolve their dispute, the mediator's belief that it can be resolved keeps the door open, and gives the clients hope.  Patients and clients might hire you for your experience or your knowledge, but they can't succeed without hope.
"Darkness cannot drive out darkness: only light can do that. Hate cannot drive out hate: only love can do that.” - Martin Luther King, Jr.

Friday, December 9, 2016

Why do People go to Court to get Divorced? Because that's where the money is...

There is a story that Willie Sutton, a famous bank robber, once responded to a reporter who asked "Why do you rob banks?" with the simple answer "Because that's where the money is!"  While that story is probably made up, it reminds me of the reason that most people go to court to get divorced: because that's where the paperwork has to be filed.

Of course, if divorce was as simple as filling out the paperwork then there would be no need to write anything further.  However, the act of getting divorced involves numerous aspects of a couple's lives including finances, parenting, communication, loss of a relationship, forming of new relationship dynamic, etc.

One Court's Answer:

One court in San Francisco, California has recognized this problem by "strongly recommending" that people filing with the court in family law matters first consider out-of-court dispute resolution options:
"The San Francisco Superior Court and its Family Law Department strongly recommend the use of alternative dispute resolution methods in family law matters. This Notice is intended to inform parties and counsel about the nature and availability of such methods. All parties and all counsel in such matters must file and serve a signed copy of this Notice in the manner prescribed in Rule 11.17 of these Rules."  NOTICE OF NATURE AND AVAILABILITY OF ALTERNATIVE DISPUTE RESOLUTION METHODS IN FAMILY LAW MATTERS
The Notice explains the options of mediation and collaborative law in depth, as well as describing areas where those options might not be appropriate.  While you can't force someone to really consider all their options, this Notice at least ensures that the parties are aware they had options.

How does Massachusetts Compare?

In Massachusetts, we have a similar rule about informing parties of ADR options but the Uniform Counsel Certification Form is only signed by counsel and this is the entire text:
In accordance with Rule 5 of the Supreme Judicial Court Uniform Rules on Dispute Resolution (SJC Rule 1:18) which states in part: 
"...Attorneys shall provide their clients with this information about court-connected dispute resolution services; discuss with their clients the advantages and disadvantages of the various methods of dispute resolution; and certify their compliance with this requirement on the civil cover sheet or its equivalent." 
I hereby certify that I have complied with this requirement.
Many people don't go to court because that is their best option, it's often because they don't know that they have other options.  The Rule 5 form is an opportunity to educate, instead of just treating it like a formality.

Dealing with the Conflict of Interest:

Critics of how family court is structured in the United States often point to the conflict of interest that divorce attorneys have:  attorneys make more when there is more conflict and when cases go to court instead of settling.  In fact, there's a whole "documentary" dedicated to the subject: Divorce Corp.
This type of conflict is not unique to the legal field.  In medical ethics, for example, one answer to addressing this type of conflict has been to require "informed consent": "But signing a form alone does not necessarily prove that the patient gave informed consent. The doctor must actually discuss the procedure and risks with the patient. And the patient must understand, to the extent possible, the risks he or she faces."

If attorneys and the family court are serious about client autonomy and the right of parties to settle on an informed basis, then the parties have to know their options before proceeding in court.  Otherwise, it's a fair criticism to say that clients are often encouraged to go to court "because that's where the money is" for the lawyers.

I truly believe that the majority of divorce attorneys are not following purely financial motivation, but if I'm right then we need to support better efforts for "informed consent" by our clients.  California is clearly leading on this front, and Massachusetts courts should follow suit.

Sunday, November 27, 2016

Can Child Support be Modified Retroactively? The Appeals Court Answers in Rosen v. Rosen

The Massachusetts statute on the enforcement of child support judgments is very clear that child support judgments are not "subject to retroactive modification except with respect to any period during which there is pending a complaint for modification." M.G.L. c. 119A §13(a).  A recent Massachusetts Appeals Court decision recognized some exceptions to this rule "in certain very limited circumstances." Rosen v. Rosen (2016)

The Rosen case involved a couple who were married fourteen years and divorced by agreement in 2003.  The mother had primary physical custody of three children and the father paid monthly child support of $4,500.  Upon the oldest child moving in with the father, he unilaterally reduced his support by 1/3 without court approval.  The parties later reached an agreement (2009) memorializing a change in support to $3,400.  The agreement was filed but not approved by the court due to procedural issues.

In 2011, a second child moved in with father and he filed a Complaint for Modification seeking to reduce his support and force the mother to contribute to college education expenses.  The mother filed a Complaint for Contempt seeking retroactive repayment of the child support that was underpaid on the original separation agreement.

The trial judge acknowledged that she could not retroactively enforce the 2009 agreement, but she did give an equitable credit to the father for the fact that the older son had been living with him for a period of time.  The mother challenged the equitable credit among other decisions of the trial judge.  The Appeals Court reviewed in depth the standards used in other jurisdictions for creating exceptions to the limitation on retroactive changes, but decided to create their own very specific exception.  In order to avoid confusion or abuse of any exception created, the Appeals Court in Rosen "favor[ed] a clearly delineated standard that relies on objectively verifiable facts in order to allow an equitable credit."

The Appeals Court set out the following requirements for an equitable credit to be received against a child support arrearage:

The payor must demonstrate the following to receive an equitable credit:

  1. the support recipient agreed (a) to transfer custody of the child to the payor for an extended period of time not contemplated in the original custody order,  and (b) to accept the payor's direct support of the child as an alternative method of satisfying the payor's child support obligation; 
  2. the custody transfer was not the result of duress, coercion, or undue influence exerted by the payor against either the recipient or the child; 
  3. the payor provided the child with adequate support and maintenance while the child was principally domiciled in the payor's home; 
  4. the recipient was relieved of supporting the child during the period in question; 
  5. the alternative support arrangement was not contrary to the child's best interests; and 
  6. granting a credit to the payor for his or her direct support of the child would not result in injustice or undue hardship to the recipient. - Rosen v. Rosen (2016)
Applying these narrow principles in the Rosen case, the Appeals Court concluded that the trial judge was justified in finding that this case presented "compelling circumstances of an equitable nature" and affirmed the trial judge's award of an equitable credit to the father.  The court also dealt with the standard for a finding of Contempt, corrected calculation errors as to the arrearage amount, and affirmed a college education contribution award against the mother.  

There are two takeaways from the Rosen case on the primary discussion regarding retroactive credits:
  1. There is now a very clear test for determining whether a retroactive change in child support prior to the service of a Modification Complaint is appropriate, and it is a very narrow test.  In other words, child support is almost never retroactively modifiable prior to the date of service of the Complaint of Modification.
  2. If two parents reach an agreement for modifying support, even in writing, it has to be approved by the court or it will not be enforceable.  

Wednesday, November 23, 2016

Post-Divorce Lessons from the Massachusetts Appeals Court: Fehrm-Cappucino v. Cappucino

Even after a divorce the conflict between couples sometimes continues due to an ongoing support order or co-parenting relationship.  If spouses don't settle on an agreed upon process for addressing future changes, these disagreements can often lead to additional court cases.

In the case of Fehrm-Cappucino v. Cappucino, a 2016 Massachusetts Appeals Court case, the parties took a modification and contempt action to trial and appeal, resulting in a remand of both cases back to the trial court for new findings.  In Fehrm-Cappucino, the father sought a reduction in his child support in a modification, and the mother sought a finding of contempt against the father for non-payment of a lump sum owed under their agreement.

Here is what we can learn from the Fehrm-Cappucino decision:

1.  Rental Income Is Includible for Child Support Calculations

The trial Judge excluded rental income each parent had from properties they had an interest in.  The trial Judge excluded the father's rental income because the underlying property was divided in the divorce.  However, the Appeals Court didn't agree that the division of the asset in divorce resulted in a waiver of the income's inclusion in the child support calculation.  This is not a double-dip because income from the asset and the underlying principal value are different, and there is no exclusion in the child support income list for assets divided during the marriage (as there is in the alimony statute).  This issue was therefore remanded to the trial court.

2.  Contribution from the Mother's Boyfriend to Rent Is Not Includible for Child Support Calculations

The mother appealed the trial Judge's decision to attribute income to her based on contributions from her cohabiting boyfriend.  The appeals court indicated that the findings were insufficient because the trial judge should have made additional findings as defined in Murray v. Super, 87 Mass. App. Ct. at 155:
"[a]dditional findings that would aid our analysis, includ[ing], but . . . not limited to, . . . the lack of an obligation of the mother's [boy friend] to support the children, the manner in which the mother's and the children's lifestyles are altered by these funds, the discretion that the mother's [boy friend] maintains in payment of these funds, and the manner in which the mother would support her household absent these funds." Murray v. Super, 87 Mass. App. Ct. at 155.
This issue was therefore remanded to the trial court.

3. Attribution of Income to the Mother was Not Sufficiently Supported

The mother also appealed the trial Judge's decision to attribute income to her based on her own earning capacity.  According to the child support guidelines:
"[t]he Court shall consider all relevant factors including without limitation the education, training, health, past employment history of the party, and the availability of employment at the attributed income level. The Court shall also consider the age, number, needs and care of the children covered by this order. If the Court makes a determination that either party is earning less than he or she could through reasonable effort, the Court should consider potential earning capacity rather than actual earnings in making its order."
The trial judge found that the mother was capable of working thirty hours per week at her previous hourly rate of $25.  However, the trial Judge did not make specific findings as to the availability of employment at the attributed level and the Appeals Court therefore remanded this issue as well.

4. It's Difficult to Prove a Negative

The trial Judge also concluded that the father was not in contempt for failing to pay a $10,000 lump sum.  The Judge found there was a lack of direct evidence.  While the Appeals Court did indicate that the trial Judge is not required to accept the wife's testimony that the payment wasn't made, they noted that the trial Judge failed to list a rationale for ignoring her testimony without any opposing evidence or a finding of credibility.  Therefore the contempt adjudication was also remanded for further rationale or a different disposition.

All of these Appeals Court rulings are helpful in approaching other post-divorce matters that might arise but it is an expensive lesson for these parties.  It is noteworthy that these parties spent a considerable amount of time fighting these post-divorce cases only to be returned to trial by the Appeals Court.  This is another example of a case where early intervention dispute resolution through mediation or other forms of conflict resolution could have resulted in a faster and more efficient result.

Friday, November 18, 2016

Who Needs to Know? - 5 Best Practices to Protect Privacy in Divorce

Divorcing spouses that choose outside-of-court dispute resolution, like mediation or collaborative law, often list privacy as one of their primary reasons for choosing to avoid court.  This may seem obvious when thinking about the publicity around celebrity divorces but anyone having their dirty laundry aired publicly can be damaged both emotionally and financially.  Below are some precautions that practitioners and clients can take to protect private information in divorces, even if they're not a celebrity.

1.  Protect Personal Identifying Data: 

The court process in many states is public (in Massachusetts this includes hearings, most court documents, and trials), however there are some limitations on what information is public.  Certain documents, such as the Financial Statements, are typically impounded, meaning the public does not have access to those documents and they are only available to court personnel, parties and their counsel.  In addition, most courts encourage parties to limit what information they share.  

In Massachusetts, the SJC has provided "Interim Guidelines designed to protect against identity theft by having court filers omit or delete certain personal identifying information, such as social security numbers. These Guidelines for the Protection of Personal Identifying Data (PID) in Publicly Accessible Court Documents are non-binding and took effect on September 1, 2009."

These Interim Guidelines encourage the redaction or omission of the parties' social security numbers, driver's license numbers, tax id numbers, passport numbers, and mother's maiden names.  There are exceptions listed, but clearly the best practice is to err on the side of not including this information, even on impounded documents, unless required.

In a Massachusetts practice, this means that we strongly advise clients to only use last four digits of their social security and account numbers where that information is required (such as on financial statements), and not to use their full information.  For professionals any such disclosure of client's information that isn't required could be considered a violation of M.G.L. 93H.  This includes redacting that information from any document that might be included as an exhibit (such as a tax return or account statement).

2. Don't Air the Dirty Laundry:

One of the problems with trying to settle a divorce case through the court process is that an adversarial process encourages people to take extreme positions.  When presenting to a court this is usually a client's last chance to get their best possible result, which requires that they make their "best case" and the other side's "worst case."  In divorce, this best case/worst case information can be very personal.  

While presenting to a court is sometimes necessary that doesn't mean that all the dirty laundry needs to be put into public documents.  Parties and counsel should be thoughtful about what they put in writing and how they write it.  This is primarily an exercise in common sense, which unfortunately may be a difficult request when client's are emotional and scared.  One question that can be used to help client's draw that line appropriately is to ask "Would you be comfortable with your child reading this statement?"

Would you be comfortable with your child reading this statement?

If your answer to that question is no, but a truly damaging piece of information is necessary for an argument in court, there is a process for requesting impoundment of sensitive information:

3. Ask for Particularly Private Information to be Impounded:

While some documents are impounded, most court documents are not:  
“[I]mpoundment is always the exception to the rule, and the power to deny public access to judicial records is to be 'strictly construed in favor of the general principle of publicity.'” Republican Co. v. Appeals Court, 442 Mass. 218, 223 (2004), quoting Commonwealth v. Blondin, 324 Mass. 564, 571 (1949)." - Handbook on Trial Court Rule VIII, The Uniform Rules on Impoundment Procedure
Protecting public individuals from private or hidden government action is an important principle of a democratic republic.  So in states like Massachusetts, impoundment is the exception, not the rule, and is only available in limited circumstances. It is therefore difficult to impound certain information.  However, there are many circumstances where courts in Massachusetts will agree it is appropriate.  There are very careful precautions that one should take when requesting impoundment.  For example:  
  • when filing a Motion to Impound you should probably also ask that the Motion to Impound be impounded as it may also include sensitive information; 
  • always file the Motion to Impound before filing the sensitive information; and 
  • make sure to include only the necessary information to argue impoundment in the Motion to Impound. 
In Massachusetts the court has specific rules and procedures for this type of request contained in the Handbook on Trial Court Rule VIII, The Uniform Rules on Impoundment Procedure.  This is a complicated process and we recommend consulting with counsel when making this type of request.

4.  Protect Sensitive Financial Agreements by Including in Impounded Documents:

In Massachusetts, the Financial Statements in a divorce are impounded automatically (without having to present a Motion to Impound as described above), but the Divorce Agreement is public.  It is typical, therefore, to reference accounts as listed in the Financial Statement and not disclose unnecessary information about accounts in the Divorce Agreement.  Incorporating the information via reference to the Financial Statement makes that document part of the settlement so it is very important that both parties carefully prepare their Financial Statements to be true, accurate and complete.

In addition, it is possible to use this technique more creatively to protect certain information.  For example, if the parties are agreeing pursuant to their Divorce Agreement to sell their house, they likely want to include some parameters around that sale in the Agreement.  They may want to list details about the agreed upon sale price and a mechanism for reaching agreements to evaluate a lower offer.  Putting that information in the public document, however, could be to their detriment.  If a potential buyer reviewed that public Agreement they might use that information to their advantage in negotiating a sale price for the house.  That risk can be avoided by including that same information as an addendum to both parties' Financial Statements and only referencing that addendum in the public document.

5.  Choose a Private Process from the Beginning:

As we indicated at the beginning of this article, privacy is a major concern for many families and one of the primary reasons that a family may choose to avoid court.  There are options for resolving conflict which do not require airing the dirty laundry in court, and which allow for thoughtful planning about what information should be kept private.  Mediation and Collaborative Law are both out-of-court resolution options which assist parties in reaching agreements in an office setting instead of a public courthouse.

Mediation and Collaborative Law have many other advantages as well which we encourage you to read more about on our website.  For the purposes of this article and focusing on privacy there are two ways that mediation and collaborative law protect a client's privacy:

First, mediation and collaborative law are both confidential processes in which the parties typically sign a written agreement that protects the discussions and proposals that occur within the process.  A recent Massachusetts case upheld the confidentiality of the mediation process even in some extreme circumstances, so long as the requirements of the privilege statute were met.

Second, mediation and collaborative law allow parties to draft agreements and court documents in a thoughtful way, so that even a public Divorce Agreement filed at the end of a case can be crafted in a way that limits public exposure.  The example given in section 4, above, of including asset division information in the impounded financial statement instead of the Agreement, is the type of solution that is encouraged by the joint problem solving in mediation and collaborative law.

Empowerment through Privacy

Divorce, for many, can be very difficult, but considering all of the options can reduce the amount of stress, embarrassment, tension, and financial impact that people experience from divorce.  The control of information is often the difference between feeling empowered and feeling powerless.  Following these tips should help clients and professionals control how much information is kept private, thereby empowering spouses to experience a less traumatic divorce.

Thursday, November 17, 2016

How Private is a Meeting with an Attorney or Mediator?

There are two different levels of protection you might have when meeting with a professional and they are both important: Confidentiality and Privilege.

Confidentiality is a duty for the professional to keep information you share with them private, and different professions have different sources of authority for such a requirement.  In other words, confidentiality is rooted in the obligations of the professional, not necessarily in a right of the client.

Privilege, however, is a right that is granted only in particular situations.  In this context when we are discussing privilege we are referring to a right, conferred by the government, to exclude certain information from being admitted in a court proceeding.  This could mean, for example, that if a privilege applied you could prevent the professional from testifying in court.  Privilege is a right rooted in the relationship between the professional and the client, and is typically owned by the client.

Is the information you share with an Attorney or Mediator confidential?

Any information you share with a mediator or attorney should be kept confidential by that professional, but a mediator may not have the same ethical requirements depending on their profession.  A mediator who holds a license in a field other than law (such as a social work license) will likely have similar ethical requirements as a lawyer for keeping information you provide to them private.  An attorney, when acting as a mediator or in an advocate role, has ethical requirements outlined by their licensing authority.

Either way a mediator or attorney should not be sharing your confidential information, but if you have questions about how they view that duty you should ask in the initial consultation before you hire them.

Is your information protected by a privilege when meeting with an Attorney?

The private communications that you have with an attorney are protected by the attorney-client privilege, unless another person is present (or you are planning a crime together):
What is the attorney-client privilege?Attorney-client privilege is the right of clients to refuse to disclose confidential communications with their lawyers, or to allow their lawyers to disclose them.  The attorney-client privilege is viewed as fundamental to preserve the constitutionally based right to effective assistance of legal counsel, in that lawyers cannot function effectively on behalf of their clients without the ability to communicate with them in confidence.
Why is the attorney-client privilege important?The attorney-client privilege is the bedrock of the client’s constitutionally based right to effective assistance of counsel. From a practical standpoint, it plays a key role in helping clients, including companies, to act legally by permitting them to seek guidance on what the law allows and requires and how to conform their conduct to the law. In addition, the privilege allows organizations such as corporations to investigate past conduct by corporate officers and employees, to identify shortcomings and remedy problems as soon as possible, by ensuring that the client can communicate fully with the investigating lawyer without risk of public exposure. That benefits the corporations, the investing community and society-at-large.

Is your information protected by a privilege when meeting with a Mediator?

The attorney-client privilege does not apply to mediator meetings, even if the mediator is an attorney as well.  There are, however, separate privilege protections offered in mediation in some states.  For instance, in Massachusetts there is a statute that provides for a mediator privilege so long as certain requirements are met:
All memoranda, and other work product prepared by a mediator and a mediator’s case files shall be confidential and not subject to disclosure in any judicial or administrative proceeding involving any of the parties to any mediation to which such materials apply. Any communication made in the course of and relating to the subject matter of any mediation and which is made in the presence of such mediator by any participant, mediator or other person shall be a confidential communication and not subject to disclosure in any judicial or administrative proceeding; provided, however, that the provisions of this section shall not apply to the mediation of labor disputes.
For the purposes of this section a “mediator” shall mean a person not a party to a dispute who enters into a written agreement with the parties to assist them in resolving their disputes and has completed at least thirty hours of training in mediation and who either has four years of professional experience as a mediator or is accountable to a dispute resolution organization which has been in existence for at least three years or one who has been appointed to mediate by a judicial or governmental body.
Source: Mass Gen. Laws Chapter 233 Section 23C
This privilege is very powerful and was recently reviewed and upheld in a case where one party tried to challenge confidentiality and bring certain information from the mediation into court after a settlement went bad.  

The second paragraph of the statute outlines the requirements for the mediator privilege to apply in Massachusetts and if you are considering hiring a mediator you should ask them about these requirements, and whether they have any language about confidentiality in their mediation agreement.

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