WE HELP FAMILIES RESOLVE CONFLICT PEACEFULLY


Wednesday, July 19, 2017

8 Changes in the 2017 Massachusetts Child Support Guidelines

Every four years the Child Support Guidelines in Massachusetts are updated by a Task Force appointed by the Chief Justice of the Trial Court.  In 2013 the Guidelines were updated and significant changes were made to the formula and to the parenting time language.  The Guidelines have been updated again for 2017, and the new guidelines take effect on September 15, 2017.  These are the primary changes:

1. Change in Format

Previous Guidelines contained a few footnotes, but for the most part were free of commentary.  The 2017 Guidelines include Principles and Comments to assist parties and the Court in interpreting and applying the Guidelines.

2. Raising the Minimum Amount of Child Support to $25 per week:

The minimum amount of child support since 2002 has been $80 per month ($18.46 per week).  The Task Force recommended raising this amount to $25 per week to reflect updated economic data.  This minimum presumptive order applies up to $115 per week in support.

While $7 per week may not make a huge difference to families (or be worth going to court to modify) it is an important gesture for the Task Force to recognize that these minimums should not stay stagnant and should at least keep up with inflation.

3. Parenting Time - Eliminating the In-Between Category (33-50% parenting time):

One of the more controversial changes in the 2013 Guidelines involved additional language related to parenting time.   In 2009, the Massachusetts Child Support Guidelines added language acknowledging the increase in shared parenting by specifically defining how the Court should calculate child support differently when parents share parenting time "equally, or approximately equally."  The 2009 Guidelines recognized the sharing of parenting costs in shared parenting arrangements, determining the presumptive support amount "by calculating the child support guidelines twice, first with one parent as the Recipient, and second with the other parent as the Recipient. The difference in the calculations shall be paid to the parent with the lower weekly support amount."

However, the 2009 Guidelines still left questions as to how to handle cases that didn't fit a one-third or equal parenting time.  The 2013 Guidelines made an effort to clarify these two issues, though arguably the result was still quite vague.  The 2013 Task Force added language allowing the court to consider a deviation upwards when the payor had less than 1/3 of the time, and added an averaging calculation for cases where parenting time was in between 33 and 50% of the time.  The average category in particular was highly criticized for increasing litigation over small amounts of parenting time.

The 2017 Task Force, recognizing these issues deleted the in-between category, and clarified the deviation factor by adding a principle to guide Judges in their determinations:
"recognizing that deviations should be used when appropriate to tailor a child support order to the unique circumstances of a particular family."
While the 2017 Task Force has highlighted the importance of the appropriate use of discretion this only increases the uncertainty that parties have when going in front of a Judge, and this remains a strong argument for self-determination and the use of out-of-court settlement options, such as mediation, whenever possible.

4. Child Care & Health Care Costs - A proportional adjustment with a cap:

The new guidelines formula tries to give appropriate adjustments to the order for the payment of child care and health care costs because of the significant impact these costs can have on a family.  However, they kept in a cap to avoid these expenses overtaking or eliminating the support order.  This means that whoever pays for child care or health care costs will not get a dollar-for-dollar credit and how parents split these expenses will still have a significant impact on their bottom-line net expenses.

We encourage our clients to run the guidelines multiple ways, trying the expenses in one way or split, in order to see the net difference.  This will still be necessary, though these changes will help to minimize in certain circumstances the extreme differences that could occur under the previous guidelines due to these expenses.

5. Children Between the Ages of 18 and 23 - A New Formula:

The 2013 guidelines indicated that the formula was not presumptive once a child turned 18, though the statute still allowed for support to be ordered.  This left a lot of room for deviation and in many cases resulted in simply a continuation of support at the same amount.  The 2017 guidelines require a 25% reduction in the amount of support attributable to a child over age 18.  This means that there is a presumptive amount of support owed for children over 18, up until age 23, though the court still has discretion to deviate, and the emancipation factors still apply.

When there are multiple children Table B on the Worksheet indicates how the total percentage is reduced, since only the portion attributable to the adult child should be affected.

This change will certainly lead to numerous modification requests by parents, and we are hopeful that many of them will consider using mediation and filing Joint Petitions for Modification rather than litigating these issues which should be pretty straightforward under the new guidelines.

6. A Cap on the Presumptive College Expense Contribution: 

The 2013 guidelines lumped college expenses in with other extra expenses (like private school or extra-curricular activities) which a Judge has discretion to order a parent to contribute to on a case-by-case basis.  The 2017 guidelines have a separate section dealing specifically with these expenses.  While noting that contribution to these expenses is not presumptive, the guidelines provide factors for considering whether the court should order a parent to contribute to college expenses, and provides a cap on that contribution equal to 50% of the undergraduate, in-state resident costs of the University of Massachusetts-Amherst.

The Guidelines also note that if college education contribution is ordered in addition to child support then "the Court shall consider the combined amount of both orders."  No guidance is provided in the comments about how this shall be considered, but presumably this is a nod to the Judge's ability to decrease child support if the combined amount is too great.

7. Clarifying Modification Language:

The 2017 guidelines clarify that any inconsistency with a guidelines order can result in a new order once a Complaint is in front of the Court.  However, cases where the original order was a deviation won't necessarily change just because of an inconsistency which is inherently obvious, or the order would immediately be modifiable after being agreed to.  The new guidelines add further clarity as to when a deviation order can be modified, or should remain.

8. Self-Employment, Imputed and Attributed Income:

The Task Force reorganized and clarified each of these sections with an emphasis on when income should be counted for the child support calculation on both the payor and recipient side.  While overtime income may be excluded, the emphasis of most of the changes is on including additional income when appropriate, such as non-taxable self-employment income, undocumented income (including reference in the comments to free rent), and clarifying specifically the case law on attributable income due to unemployment or underemployment.

BONUS: Notable Choices Not to Change Certain Sections:

Alimony Interplay: The Task Force encourages the court and parties to consider the tax effect of support when choosing between child support, alimony and unallocated support.  However, they did not make any changes to the guidelines language in this section citing the lack of any case law on this issue since the last update.

Maximum Income: The guidelines only apply up to $250,000 of combined household income and the Task Force made no changes or further recommendations on how to deal with income above $250,000 except to note that it is discretionary.

For more information check out these links:

The 2017 Massachusetts Child Support Guidelines

The 2017 Massachusetts Child Support Worksheet

The Report of the 2016-2017 Task Force

The Economist's Report 2016-2017 (for those of you who like charts and graphs!)

Information on Mediation

Information on Collaborative Law



Tuesday, May 30, 2017

Can a person reporting a Restraining Order violation be sued if they're wrong?

Though our work is primarily focused on family mediation, a recent Anti-SLAPP case caught our attention. The Anti-SLAPP statute protects those “petitioning” a government entity from retaliatory civil lawsuits.  The recent case of St. Germain vs. O’Gara references this statute, in the context of a reported allegation of violating a restraining order.

St. Germain, the defendant, reported O’Gara to the police for violating a permanent abuse prevention order. She reported that St. Germain mailed documents to her which violated the protection order, but it turns out were properly filed court documents.  O’Gara was arrested for perceived violation of the order but later released due to lack of evidence against him.

The trial court denied St. Germain’s motion under the Anti-SLAPP statute to dismiss O’Gara’s complaint against her.  However, the Appeals Court found that the trial court failed to apply the two-part test appropriately.  The two part test requires first that the moving party show that the suit against her relates only to the petitioning activity, and if proven then the burden shifts to the opposing party to show "by a preponderance of the evidence, that ‘(1) the moving party's exercise of its right to petition was devoid of any reasonable factual support or any arguable basis in law and (2) the moving party's acts caused actual injury to the responding party.’ "

While the trial court indicated that there wasn’t enough factual evidence to rule on the Motion in favor of St. Germain, the Appeals Court disagreed.  The Appeals Court believed that St. Germain met the first part of the test because her report to the police was “petitioning activity” under the statute:
“When a person reports suspected criminal activity to the police, she is engaging in constitutionally-based petitioning activity for purposes of G. L. c. 231, § 59H.”  
While there were multiple counts to O’Gara’s complaint, they all stemmed from this petitioning activity and therefore the first part of the test was met.  The second part of the test required O’Gara to “establish by a preponderance of the evidence that ‘no reasonable person could conclude’ that St. Germain's report to the police was supported either in fact or in law.”

Here is where St. Germain believes she had a reasonable case to reach out to the police:

  1. She made attempts to check that the filing was proper:  Upon receiving the letters from O’Gara, St. Germain noted that there were no stamps certifying that the hand-written notes were official court documents. Though she was wary of the lack of court seals, she did not assume guilt and checked in with an unidentified individual at the Probate and Family Court who reported that “that there was no record whatsoever of the unstamped documents (that St. Germain) received."  It later turned out they had been likely been filed by mail and misplaced by the court.
  2. She reached out to a Police Officer to investigate who reached the same conclusion:  The officer investigated the inquiry and agreed that O’Gara had violated his order based on the documents he reviewed and his conversation with the Probate and Family Court. St. Germain did not propose the arrest but it was rather the officer that contacted the New Bedford police who took O’Gara into custody.

But O’Gara countered that he did contact the court and that St. Germain’s conversation with the police was malicious.  In the end, even if the Appeals Court agreed that her conduct was malicious (which they don’t seem to), the Court concluded that the intent wouldn’t matter under the Anti-SLAPP statute, so long as any reasonable person could agree that her petitioning activity had a basis in fact or law.

It was therefore determined that St. Germain could have been reasonable in believing the mailed documents were in violation of the restraining order.  While the facts later resulted in O’Gara’s prosecution being dismissed, that doesn’t overcome the burden required to proceed with his claims against St. Germain.  In other words, the Appeals Court believed that this is exactly the type of petitioning activity the Anti-SLAPP statute is intended to protect.

St. Germain was protected by the Anti-SLAPP statute and the case was remanded for an order allowing her Special Motion to Dismiss and to address the issue of attorney’s fees.

Written by Justin Kelsey & Patricia Cordischi

Thursday, May 25, 2017

Meet Our Summer Intern - Patricia Cordischi

Along with our projected move (more on that soon!) and fresh start to the summer, we have taken on a new member of the Skylark team. Patricia Cordischi, a rising senior at Brandeis University, officially started this week as our  Skylark summer intern. Patricia is minoring in legal studies at her university and curious about the world of law. She is highly interested in family law but wishes to explore beyond the domestic realm into entertainment law.

At the office, Patricia will have various responsibilities including administrative work, drafting, and sitting in on consultations. She will be answering your phone calls and will hopefully be another friendly face you can speak to. Her background is in marketing, specifically in re-branding of company’s digital platforms, so she will be instrumental in maintaining our blog as well.

She is a go-getter and quick learner. With each new endeavor she takes on, Patricia is determined to excel. Patricia looks forward to getting to know both our present and future clients and colleagues. Please do not be shy to say hello and introduce yourself.

Welcome to Skylark Law and Mediation Patricia! We are lucky to have you!

Thursday, May 18, 2017

5 Tips for Adding Video to your Mediation Practice

Video meetings are starting to
replace in-person and phone meetings.
Guest Post from Julie Tolek*

As more services go digital, it is necessary for legal and mediation professional to follow the trend. Clients expect an equal level of convenience and access in purchasing legal and mediation services that is provided in other online services. This means that the technological requirements on a modern law and mediation firm go well beyond having a good website.

It is important for forward thinking mediators and lawyers to add online scheduling, paperless billing, cloud file access and similar options to their regular services for their clients.  Following the growing digital trend, video meetings will likely replace in-person and phone meetings. To help mediators face the changing needs of their practice we’ve thought about the most important considerations involved in adding these services and making them seamless for your clients:

Five things to keep in mind when adding video mediations to your practice: 

1. Are all participants at different locations or will at least one participant be coming to your location? If a participant will be with you in the office, consider whether they should still bring their own device so they can log onto the video conference individually, or do you have a camera system set-up where the entire conference room is in view? Otherwise you might have to sit very close to each other to appear on screen, which can be uncomfortable and awkward. Sitting close to each other might also give the impression of being on that person's “side”, since both of you are together on the other “side” of the camera, seemingly opposing the person who is out of the office on camera. Doing what you can to minimize this effect will keep your mediation in neutral territory.

2. Use a video conference app where you can share a screen. The new normal, even when in real life, is usually to view documents in some digital manner on your device, or to display them on a big screen so everyone in the room can view the document together. Printing every single document is becoming a rarity, especially when there are multiple people working on multiple drafts of the same document. Using a video conference app (such as Zoom) where you can share your screen (even better if you can share specific windows on your screen or apps you are running) makes it easier to go over documents or view websites collectively in the conference, instead of each person having to do it alone and at a difference pace. Remember that while some video apps allow screen sharing on the iPhone or other small device, it might be a bit trickier than on a computer. You can also email any documents you plan to go over ahead of time for the note-takers-by-hand so they can print what they want to and doodle away.

3. Double check your time-zones. Often, clients use video conferencing because someone lives far from any central meeting point, and the easiest way to get everyone together is via video. Make sure that everyone knows in what time-zone the video call is to occur and double check (maybe even triple check!) your calendar. Some calendars have a section where you can change the time-zone of a meeting, which can be equally as confusing as it is useful, depending on whether you have your time-zone settings active in your calendar. When in doubt, an email to participants to confirm the time-zone can get everyone on the same page.

4. Accessorize according to your environment. If there are other people around you and you are unable to be in a quiet room alone, use headphones and add a microphone when possible. Even the headphones that came with your smartphone likely have a microphone on the cable, making them super convenient when joining the video on your own device. You can also use an external microphone if you are using a computer to avoid unnecessary screaming into your screen. Depending on your surroundings, you may not need headphones or a microphone at all. Also if you are using a smaller device like your phone, a tripod or stand will keep you hands free and easily at “eye” level with other participants. Turn your video feed on to test the lighting and make sure people can see you!

5. Don’t be late to the party. Make sure your software is up to date and ready to use so you are not bogged down with updates or issues launching your video app. Just because you are virtual doesn’t mean you can slack on preparation.  Give yourself about 15 minutes to launch and deal with any update prompts, frozen screens, and hardware positioning, and then log in to your meeting. This routine will get you online a few minutes early, which is much better than being a few minutes late.


*Julie Tolek is an Associate at Skylark Law & Mediation, PC and runs her own practice, Think Pink Law.  Julie's practice includes family law & divorce representation, prenuptial agreements, mediation, firearms licensing & NFA trusts, estate planning & probate, and adoptions.

Tuesday, May 16, 2017

Will Quitting Your Job Reduce Child Support or Alimony?

It is a common refrain that support payments are usually more than the payor wants to pay and less than the recipient wants to receive.  This discrepancy can be extreme when the parties have been used to a particular lifestyle and the payor's income decreases significantly. It is also understandable that a recipient would be skeptical about reducing support if an income decrease for the payor was voluntary, e.g. quitting his or her job.

Those were the circumstances in the recent Appeals Court decision: Emery v. Sturtevant.  The husband/payor in the Emery case resigned from a high income position for "personal reasons" and after an extensive job search obtained a much lower paying job in the same line of work.  He then sought a reduction in his child support and alimony which the trial court dismissed indicating that they were attributing income to him at the job he left.

The Appeals Court overturned the trial court's decision and directed the lower court to calculate child support and alimony on the husband's actual income.  The discussion of the Appeals Court highlights why they thought the husband quitting his job in this case did warrant a reduction, while it might not in other cases:

Factors Considered by the Court in Allowing this Payor to Reduce his Support:

1. Leaving the job voluntarily matters, but what happened next matters more:

While the Appeals Court acknowledged that "[a]ttribution of income may be appropriate when a judge determines a career change is voluntary", they also noted that there is a second component of that review.  The second component is whether the party "thereafter failed to make reasonable efforts to secure comparable employment."

Examples given by the court of where this type of attribution might be appropriate were when a party takes an early retirement, or chooses to work in an unrelated field despite the availability of higher paying jobs.  The Appeals Court was therefore giving more weight to the availability of comparable employment in the same field than the fact that the husband left the first job voluntarily.  According to the Appeals Court, the "facts of this case are distinguishable from the voluntary career change line of cases."

2. Reasonable efforts inquiry is the controlling factor:

Since the husband had obtained a job in comparable employment, despite the much lower salary, the Appeals Court indicated that the lower court was required to consider whether the husband could have obtained a higher income in a similar position: "The reasonable efforts inquiry is critical, and is generally the determining factor in whether to affirm the attribution of income to a party based on his prior earning capacity."

The Appeals Court noted that the trial "judge did not make a specific finding regarding the reasonableness of the husband's efforts to secure employment" and they determined from the record that he had made such a reasonable effort.

The Appeals Court gave significant weight to  the “reasonable efforts” that the husband made to find replacement employment. While “reasonable effort” is certainly subjective, it is clear that the Appeals Court felt strongly that the efforts taken by the husband in this case were reasonable, despite the lower court's lack of finding on this issue (and presumably the lower court’s disagreement that the efforts were reasonably sufficient).

3. Attribution cannot be based on bad conduct:

The Appeals Court noted in footnote 15 that the trial judge gave weight to the husband's conduct, finding that the resignation was voluntary and the result of an affair.  However, the Appeals Court called this an "impermissible factor", directing lower courts to focus on the importance of the attribution factors only.

While this is strong direction to the lower court to focus on the reasonable efforts standard in future attribution cases, it seems unlikely that bad conduct will be ignored in these inquiries.  However, the Appeals Court has warned that the reasonable efforts to find replacement employment will weigh more heavily than any conduct that led up to the loss of the initial income .

Of Note - The Attribution Standard in Child Support v. Alimony

The Child Support Guidelines and the Alimony statute in Massachusetts have different language authorizing the "attribution of income":

Massachusetts Child Support Guidelines (as of 2013) state:
"Income may be attributed where a finding has been made that either party is capable of working and is unemployed or underemployed. The 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."
"In determining the incomes of parties with respect to the issue of alimony, the court may attribute income to a party who is unemployed or underemployed."
Despite the different language, the Appeals Court in the Emery case noted that the standard they were applying was essentially the same:
"At the outset, we note that 'attribution of income in the alimony context is not different in rationale from that in the child support context.' C.D.L. v. M.M.L., 72 Mass. App. Ct. 146, 153 n.5 (2008). Accordingly, the discussion that follows applies to both alimony and child support."
While that may be the case, it is apparent that the parties were fighting over more than the husband's voluntary income change.  Both the wife and the husband's standard of living were going to be significantly affected by the husband's voluntary job change.  Some discussion in the case of a subsequent Contempt ruling suggests that if the attributed income order had stayed in place, the husband wouldn't have the ability to pay the full order anyway.

As with many of our posts, we are left wondering whether these parties would have been better served by a mediation process that allowed them both the opportunity to explore these practical realities, rather than the all-or-nothing see-saw of the trial court and appeals court.  This was their second trip to the appeals court and we hope they consider trying another process before they end up there a third time.


Monday, May 1, 2017

The Collaborative Outpost

Skylark Law & Mediation, PC will soon be moving to Southborough, Massachusetts and it's an opportunity for us and other like-minded professionals.  Our new home will be a building in downtown Southborough, called the Collaborative Outpost, which has a particular mission:

To Provide an Enjoyable Work Space for Collaboratively Minded Professionals

ACCOMPLISHING THE MISSION:

Justin Kelsey, who will also be a manager of the Collaborative Outpost, first opened his law firm with Matthew Trask as Kelsey & Trask, PC in 2008.  Since that time Kelsey & Trask, PC has evolved into Skylark Law & Mediation, PC, a leader in the resolution of family and probate disputes.  Justin is active in the mediation and collaborative law communities and has long dreamed of opening a shared work space that could expand on the model that has worked so well for Skylark (now a firm with five attorney/mediators).

The Collaborative Outpost is the realization of this dream, but not the end.  Our goal is to continue to push the frontiers of collaboration and find new ways to expand the reach of peaceful dispute resolution.  We believe that a shared workspace model is conducive to these goals by reducing the overhead for individual practitioners, while increasing their opportunity for learning and networking.

outpost. noun – an outlying or frontier settlement

The joint problem solving that is central to Collaborative Law and Mediation shares a common thread with the collaborative model of shared work spaces.  They are both outliers from the traditional way of doing things.  The Collaborative Outpost combines and embraces those differences from tradition as we seek to be on the frontier of our work in every way.

“It’s always been done that way” is no longer good enough.  

We hope the idea catches on and we are able to expand to additional locations.  Aside from the obvious play on words for a former post-office building, we envision this to be just our first building, a true Outpost on the frontier of a new working model for collaboratively-minded professionals.

If you're interested in joining us or know someone who is, we have an initial offer (expiring on May 12, 2017) to join us.  Click here to view the pricing of memberships and to learn more.


Sunday, April 30, 2017

How does a Divorce end? 😡, ☹️, or 🙂

There are three typical ways a divorce process can end: Reconciliation, Judgment, or Settlement.  Very few cases reconcile once a divorce process is started, and very few cases go all the way to Judgment.  In other words, most divorce cases settle, either before going to court, or at some time during the court process.  But settlement takes lots of different forms, and those different forms can have a significant impact on whether people feel good about their settlement or not.

Many clients and potential clients have asked me if there is any statistical research on outcomes for different processes, or even whether there is any data on whether a particular process is considered more "successful" than other options.  Unfortunately, I am not aware of any large scale study comparing Mediation, Collaborative Law, Arbitration, Self-Help Negotiation and Litigation, or even anything close to comprehensive.  There is some research comparing mediation and litigation, but not much else.

In the absence of analytical data, all I can share with clients and potential clients is my own experience working with divorcing clients.  I have helped people divorce through litigation, through negotiated settlement, through mediation, and through the collaborative law process.   I can state with certainty that in my experience clients who settled via mediation and collaborative law were more satisfied with their outcomes than my litigation clients, and it is the primary reason we have transitioned our primary practice areas to these dispute resolution processes.

I think one recent story about a Collaborative Divorce case I was involved in, highlights this difference:

I recently attended an uncontested divorce hearing with my client to present to the court a settlement agreement reached through the collaborative process, and something amazing happened after the hearing.  This was a very complicated case and the client had first entered my office three years before.  He knew from the start that he wanted to work outside of court to reach a settlement with his wife, but that doesn't mean it was easy.

The case involved very complicated assets, legally and financially complicated issues over inheritance, and many emotional ups-and-downs between the clients.  We had over 30 different revision versions of a separation agreement.  Despite all of that, we did reach a final settlement, and all this history made what happened after the hearing all the more surprising.

The Collaborative team involved numerous people throughout the process, including a financial adviser, a separation therapist, a collaborative business attorney, and two different divorce attorneys for the wife.  While it is typical to use other professionals to help throughout the Collaborative process, for over two years much of the work in this case was done with just the two attorneys and the spouses.  We had many settlement meetings and shared numerous lunches together.  We were adversaries but working towards a common goal, and all of that led up to the postscript to our hearing.

The hearing itself was uneventful and the Judge approved the agreement with a minimal amount of questions about its content.  She commended the parties on reaching agreement with such complicated issues involved.  Outside the courtroom we shook hands as is typical after reaching a settlement, and then something else happened.  My client reached out and hugged his wife's attorney.  She smiled, and surprised, she said "I don't think I've ever been hugged by an opposing party in a case before."  At the same time, her client did the same, reaching out and hugging me.  This wasn't my first time.

Though it is unusual, I have had other collaborative cases where the counsel and/or the clients ended the case with a hug.  This is the what can happen when you pay attention to how you divorce, and how you resolve conflict, as much or more than what you get or give in the divorce.  I can feel good (and so can my clients) about choosing to resolve conflict in a process that recognizes the humanity and dignity of every person involved.    I don't expect (or even want) a hug in all of my cases, but I can feel good about participating in a process where that is even a possibility.

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