WE HELP FAMILIES RESOLVE CONFLICT PEACEFULLY


Sunday, October 15, 2017

This Is Your Court Day: Nov 8

For many people the judicial system is the most mysterious of the three branches of our government.  Especially in states like Massachusetts where judges are appointed instead of elected, the legislature and the executive branch dominate the news.  In addition, most people want to avoid the courthouse.  The court is where people are sued, get divorced, or go to jail.  But that's not all that happens there.

The judicial system in our republic serves the People, just like the legislators and executors.  The courthouse should also be a place where families are protected and respected, where disputes are resolved, and where victims receive justice.  The court system should not be something we fear and it should not be a mystery.

So we commend the Massachusetts trial courts for their plan to invite the public in on November 8, 2017, for the aptly titled "This is Your Court Day Open House".  The event will be taking place in eight courthouses around the Commonwealth of Massachusetts and each courthouse will have different events and tours available to any member of the public who wants to attend.

For more information on the locations, times and activities, click here.

Thursday, September 28, 2017

Can Child Support Modifications be Retroactive by Agreement? Calabria v. Calabria

With the release of the updated 2017 Child Support Guidelines, everyone is talking about how the new guidelines will change current child support orders. Right at the cusp of the child support alteration was a case in the middle of the child support debate around court v. self-modification of child support orders: Calabria v. Calabria, 91 Mass. App. Ct. 763 - Mass: Appeals Court 2017. 

In Calabria, the stipulations in the initial separation agreement of the couple in question were as follows:
“The parties agree that upon any change in his or her employment of income he or she shall immediately notify mother/father of the change, the child support will be reviewed.
This Wife is currently unemployed. The Husband’s income has been cut in half. Both parties are obligated to notify the other upon any change of employment or salary status. Parties agree to immediately seek to modify the child support obligation and said modification to be retroactive to the change of employment or salary date. Parties shall also exchange by March 15th of each year, any and all W-2's; 1099's or other documents evidencing income earned or received." 
The wife filed a complaint for modification upon learning of a past increase in the father’s income. The judge ordered, in accordance with the Child Support Guidelines from 2013, that the father pay a deficit of $9,924 for the period he did not pay fully based on this increased income. 

Upon receipt of this judgement for modification, the father refuted that the judge did not have the ability to increase his child support payments for time before the file for modification. He reasoned that as G. L. c. 119A, § 13(a) states:
"Any payment or installment of support under any child support order issued by any court of this commonwealth. . . shall be on or after the date it is due, a judgment by operation of law,  provided that said judgment shall not be subject to retroactive modification except with respect to any period during which there is pending a complaint for modification.” 
However, the Appeals court decided that the divorce agreement language for self-modification took precedence over the statutory limitation.  This should be read as a companion case for Rosen v. Rosen, which highlighted the importance of entering agreements for changes to be enforceable retroactively.  

This is another example a situation in which parties can add clarity to their Agreements which can better define their rights, and in some cases expand on the rights provided by statute.  For more examples of agreements that parties can make that a Judge couldn't do, read our prior posts:

Things a Judge Can't Do, but You Can! - Part 1: Dispute Resolution Provisions

Things a Judge Can't Do, but You Can! - Part 2: Self-Executing Adjustments

Things a Judge Can't Do, but You Can! - Part 3: Survived Agreements

Things a Judge Can't Do, but You Can! - Part 4: Parent Coordinators

 Written by Justin Kelsey & Patricia Cordischi

Tuesday, September 26, 2017

Finding Clients? It's Complicated! (sort of)

I recently told a room of potential referral sources an easy way to remember me as a resource for their clients.

I didn't tell them that they should remember me for being a mediator.

I didn't tell them that they should remember me because I'm a family law lawyer or a divorce lawyer.

That doesn't matter to referral sources or clients in today's world because it's not memorable, and it's not unique or interesting.  There are a lot of mediators and divorce lawyers, and many of them are great, and many of them have more experience than I do.

Instead I said:

Call me when when your friend changes their Facebook status to "It's Complicated"

The message contained in this request is not that I am a lawyer or a mediator, so you should hire me.  The message is that I help people when things get complicated.  The message is about the potential client, not about me, or my skills.  It's about what they are going through.  

(also the reference to facebook is little bit of subliminal marketing... maybe you'll remember me the next time you login to facebook... that's not a bad association given how popular facebook is)

Our office is currently at Clio Cloud Conference in New Orleans and this is one of the consistent themes of this conference.  Marketing in the new economy is not about you, it's about your potential client.  Meet your clients where they are (and they're definitely on facebook and twitter and snapchat, etc.)  Make a connection with referral sources and clients if you want them to remember you, like you, trust you, and want to hire you.

So think about what is your culture, what is your purpose, and how do you communicate that to clients and referral sources.

Our culture is ☮.
Our purpose is to help clients resolve family conflict peacefully.
We communicate that hopefully with everything we do, say and share.

Please share in the comments your culture, your purpose, and your ideas for building a community with your clients!

Wednesday, July 19, 2017

8 Changes in the 2017 Massachusetts Child Support Guidelines

Update: Use our 2017 Guidelines Calculator here.

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 income.

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.
Related Posts Plugin for WordPress, Blogger...