Friday, July 24, 2015

Are Divorce Lawyers regularly violating the Civility Guidelines?

At a recent event celebrating the 15th Anniversary of the Massachusetts Collaborative Law Council, one of it's founders, Rita Pollak, spoke about her reasons for joining the Collaborative Law movement.  Among those reasons was a recognition that the practice of family law in the courts was becoming less civil, and more hostile.  This is a sentiment that I have heard echoed by many, and have experienced myself.   Too many of the lawyers who handle family law cases fail to understand the importance of civility, and act without thinking about the true impact of their actions.  In fact, I believe many lawyers think they are acting in their client's best interest when in fact they are modeling bad behavior and bad habits which will harm their clients and their client's family for years after their case is over.

The Massachusetts Bar Association approved Civility Guidelines for Family Law Attorneys in 2006.  These guidelines should be required reading for all family law attorneys and we should refer back to them whenever we're unsure about our plan of action in a case.  Even small failures in a divorce case can have lasting impact on families and children.  Consider the following typical example:

A wife gets an e-mail from her husband asking her why her attorney hasn't responded to his attorney about the financial information they are supposed to exchange.  She calls her attorney upset that her husband is bugging her about this and complains that she doesn't want to talk to him about the divorce.  That's why she's paying the attorney.  What should the wife's attorney do?  

"A lawyer’s incivility may unwittingly fuel already volatile circumstances or encourage a client to become hostile and unreasonable."


As a litigator, the wife's attorney sees it as her responsibility to solve all of these problems for her client.  So she writes a letter to opposing counsel with the requested financial information, and a demand that the husband "cease and desist" all communication with the wife except in reference to the child.

This might be an appropriate response to protect the wife, if the husband's e-mails were aggressive or threatening.  But if the husband simply happens to be in more of a hurry to get divorced than the wife, the lawyer's demand that they cease all communication will do more harm than good.  That demand takes a small discomfort by the wife and turns it into a highly contentious issue, pretty much guaranteed to make the husband defensive.  It also models a communication style for the wife that encourages all further disputes be stunted or go through the lawyers.  While that is advantageous for the lawyer's financially, it is detrimental to the family, financially and emotionally.

The civility guidelines point out:
"Domestic relations cases are unique in that they center primarily around children, family members and interpersonal relationships. Divorce is often a painful and stressful process. Clients and other family members may be in crisis and emotions often run high when a couple separates or parties are involved in a court case. Lawyers, however, set the tone for their clients. A lawyer’s incivility may unwittingly fuel already volatile circumstances or encourage a client to become hostile and unreasonable. The best domestic relations practitioners are holistic in their approach and focus on their role as a counselor as well as zealous advocate for the client. Lack of civility may have devastating, lifelong personal consequences for the client, the client’s children and the client’s most important relationships." (emphasis added)
The wife's lawyer in this example violated the civility guidelines, by setting a tone of hostility between the clients.  That lawyer had an opportunity to help her client by having a conversation about the best way to communicate with the husband and how she might respond in a way that encourages more productive future communication.  The wife's lawyer also could have picked up the phone and spoken with the husband's lawyer, expressing how her client was feeling and encouraging the husband's lawyer to have a constructive conversation with his client about being patient in the process and how he can best communicate with the wife.

All divorce lawyers need to be thoughtful about how every part of their practice models good or bad behavior for clients in an emotional crisis.  When choosing a plan of action, practitioners should ask "Does this help my client and her family long-term?"  Answering that question will seldom result in sending an aggressive letter or e-mail.  As long as lawyers fail to model effective communication, more and more people will turn to mediation and collaborative practitioners to find a divorce process that respects families, instead of destroying them.


Monday, July 20, 2015

Parenting Time, not Visitation

As of July 15, 2015, the Massachusetts Family Court's website and forms have been updated to use the term "parenting time" in lieu of the outdated term "visitation."  Chief Justice Angela OrdoƱez has made this long overdue change recognizing the national trend away from the pejorative term "visitation", which implies that one parent has less of a role than the other.

This was simply the right thing to do and we applaud the move.

Thursday, July 2, 2015

Collaborative Law Training with Justin Kelsey

Currently, four of the attorneys at Skylark Law & Mediation are trained in Collaborative Law, an out-of-court dispute resolution process.  The Collaborative Law process may be used to resolve conflict in all types of matters, including family, business, and probate disputes.  The Collaborative Law training is an excellent opportunity to add valuable skills to your conflict resolution toolbox.

Justin Kelsey, the owner of Skylark Law & Mediation, PC, will be one of the trainers at the upcoming 2015 Introductory Collaborative Training presented by the Massachusetts Collaborative Law Council.

This training meets the standards set forth by the International Academy of Collaborative Professionals (“IACP”), and those completing this training are eligible for membership in the Massachusetts Collaborative Law Council and the IACP.  More importantly, by participating in this training you would immediately become part of a growing, cutting-edge international community of Collaborative Law practitioners.

For more information or to register click here.


Divorce Mediation Training with Justin Kelsey

At Skylark Law & Mediation, PC all of our attorneys and staff are trained mediators.  Even for those who do not mediate, the skills involved in mediation training assist in all forms of conflict resolution and negotiation.  If you are interested in learning more, check out the upcoming Family Law Mediation Workshop 2015 - offered by Massachusetts Continuing Legal Education.

Justin Kelsey, the owner of Skylark Law & Mediation, PC and an MCFM Certified Mediator will be one of the trainers on the first day.

For more information or to register click here.

Top 6 Out-Of-Office E-mail Notices

Getting an out-of-office auto-reply to an e-mail you send can be frustrating, especially when you were hoping for a quick response to your inquiry.  However, they are a necessary evil in a world where everyone expects instant replies to electronic communications, at least for those of us who still intend to take vacations from the office.

I expect that my colleagues or clients will feel some disappointment when they get that immediate reply to their e-mail only to discover it's not a real reply but rather a notice that I won't be available for the next few days.  About two years ago I decided to try and lessen the impact of that disappointment with a little humor.  Judging by the amount of amused responses I received back, below are my top six auto-reply out-of-office messages:

Subject: Out of Office - "Interrupt your Vacation"
I am currently out of the office on vacation.

I know I'm supposed to say that I'll have limited access to email and won't be able to respond until I return - but that's not true. My iPad will be with me and I can respond if I need to and will probably be responding to some e-mails.

However, I am worried that the more I take my iPad out on vacation, the more it will be thrown in my face when my girls get old enough to bring their electronic devices on vacation.

Therefore, I'm going to try an experiment. I'm going to leave the decision in your hands:  If your email truly is urgent and important enough to risk increasing the teenage angst I will inevitably be dealing with when both my girls get older, then please resend it with the subject heading: "interrupt your vacation" and I'll try to respond to it promptly.

If you think someone else at our firm might be able to help you, feel free to call 508.655.5980 and speak to Melissa or Valerie.  Otherwise, I'll respond when I return on July 8th.  Enjoy your 4th of July!

Subject: Out of Office - "Comparative Urgency Rating"
I'm on vacation until September 5, 2013. While on vacation I will not respond to most of my incoming emails because, being on vacation, I'm likely to be frolicking on a beach or something, and reading emails is incompatible with frolicking.

I may read your email when taking a break from the beach, but if your request is urgent you should contact Valerie or Melissa at 508.655.5980.

If you think your request cannot be handled by Val or Melissa compare it to the examples in the table below and pick your comparative Urgency Rating of 1 to 5.  Then resend your email but start the subject line with "Urgency Rating of ___":

Urgency Rating of 1: You noticed my company has a mobile website and you think you can make it better.
Urgency Rating of 2: Your cat just yawned and you want to show me a picture.
Urgency Rating of 3: You want me to volunteer for a committee.
Urgency Rating of 4: You are a paying client and only my unique brand of straight talk, good looks, and being tall can solve your problem this week.
Urgency Rating of 5: You are Joss Whedon.

Subject: Out of Office - "Sad Batman"
I am currently out of gotham on vacation.

But don't be as sad as Batman, I'll be back before you know it.

I am returning to the office on Monday, July 7, 2014.  Please give Melissa or Valerie a call at 508.655.5980 if you need immediate assistance.

Otherwise, I'll respond to your e-mail when I return on July 7th.  Enjoy your 4th of July!

Subject: Out of Office - "Meditation"
Please follow these instructions:

Take a deep breath and close your eyes.  Slowly let out your breath and continue to breathe slowly.  Imagine that you are leaning back on a reclining beach chair.  Feel the sand between your toes and the sun on your skin.  Listen to the soft repeating woosh of the ocean waves.   Reach out your right hand and grab a drink.  The ice sloshes around as you bring the straw to your mouth and sip.  Ahhhhhhh.

I am currently out of the office on vacation and now hopefully you feel like you are there with me.  Unless of course, you actually followed the directions in which case your eyes are still closed and you're holding your breath.  Quick, let it out!

That's better.  Now, since you're not actually on the beach with me, I won't be able to respond to your request until I return on August 25, 2014.  If you need assistance before then please give Melissa or Valerie a call at 508.655.5980.

Subject: Out of Office - "Let it Go"
Sung to the melody of Let it Go:

The snow glows white in Metro West tonight
Not a Kelsey to be seen
He's leaving on his vacation
And it looks like it's a dream.

His kids are howling like a swirling storm inside
Couldn't keep it in, heaven knows they tried!
He'll let them in, He'll let them see

They're taking their first trip to see Disney
You're here, don't fear, you didn't know
Well, now you know!
Let it go, let it go

He's only gone one week more
Let it go, let it go
Melissa and Val are available for any emergencies.

Okay, that last line needs some work, but you get the point.  I will be returning to the office on Monday, December 15, 2014.  I may check e-mails while away, or I may be spending the whole time waiting in line to meet Elsa and Anna.  If you want to build a snowman, or if you need an immediate response please contact Valerie or Melissa at 508.655.5980.

Subject: Out of Office - "End of the World"
On Friday, June 26, 2015, SCOTUS ruled on marriage equality and 5 out of 9 justices determined that all 50 states should allow same-sex marriages.  The dissenting opinions foretell the end of democracy and possibly worse.  So I'm going to take a short vacation in case the world ends.

If you're all still here on Wednesday, July 1, 2015, then I will return to the office. If you need an immediate response please contact Valerie or Melissa at 508.655.5980.



Saturday, June 27, 2015

SCOTUS rules on Marriage Equality: the tl;dr version

The U.S. Supreme Court legalized same-sex marriage in all 50 states on Friday, June 26, 2015 in Obergefell v. Hodges, a 103 page decision which we read so you don't have to.  You should, but seriously, most of you probably won't.  Many people will just read that headline and know that there has been an important change in the status of legal relationships in the U.S.  Both the majority and dissents agree on one thing, this is a significant and far-reaching decision.

For a good overview of the decision itself and the legal impact, visit our friend's blog over at Finn & Eaton: Obergefell v. Hodges: Supreme Court Rules on Same-Sex Marriage, Part 2.

For now we're posting the tl;dr version of the majority and dissenting opinions:

Here is what each opinion seems to say about the author's view of marriage:

Robert's Dissent:    Marriage is an institution.
Scalia's Dissent:     Marriage limits your expression.
Thomas's Dissent:  Marriage has nothing to do with liberty.
Alito's Dissent:       Marriage is for procreation.

Kennedy's Majority Opinion:  All you need is love.

Below is a slightly more in depth analysis:

Majority Opinion written by Justice Kennedy and joined by Ginsburg, Breyer, Sotomayor and Kagan

tl;dr: Marriage is a fundamental right under 14th amendment due process and extends to same-sex couples because there is no rationale to deny benefits based on the societal reasons for promoting marriage.  This was not based on a typical equal protection analysis, but rather focused on the nature of marriage and why it's important in today's society and therefore represents an inalienable liberty.

Justice Roberts' dissent joined by Scalia and Thomas

tl;dr: Extending due process rights to marriage = judicial law-making because the history of marriage is clear and the legislative process was doing just fine.  Criticizes the majority for ignoring typical equal protection analysis.

Justice Scalia's dissent joined by Thomas

tl;dr: Scalia really wants you to know that he agrees with Roberts but wants to drop the pretense that he "respectfully dissents".  Also, Californians aren't real westerners and hippies have more fun (seriously, he said that).

Justice Thomas' dissent joined by Scalia

tl;dr: You think you know what "liberty" is? Well, do I have an irrelevant history lesson for you.  It basically involves proving that liberty and dignity can't be given to you by the government so people shouldn't care if the government endorses slavery or traditional marriage.  Change comes from within, man, so don't look to us for help. 

Justice Alito's dissent joined by Scalia and Thomas

tl;dr: Same sex marriage might have dire consequences... none of which he's willing to describe in detail other than to imply that religious freedom and democracy itself will be damaged by this decision.  


Friday, May 29, 2015

3 Prenup Drafting Tips from the Appeals Court: Pisano v. Pisano

The Appeals Court ruled, in Pisano v. Pisano, on numerous issues involving a bifurcated trial, a prenuptial agreement, temporary alimony and family loans.  The primary issues in the case all could have been prevented by inclusion of clear provisions in the Prenuptial Agreement.  This is not a criticism of the drafters, because in many instances the soon to be married couple don't want to deal with these types of specifics.  However, this case demonstrates the importance of clear and thoughtful decision-making and drafting when creating a Prenuptial Agreement.

1. Trial Judge's determination that the Prenuptial Agreement excludes income derived from separate assets from consideration of alimony - UPHELD.

While the prenup did not explicitly say "income from separate assets is excluded from the calculation of alimony" as clearly as it could have, the appeals court upheld this decision finding that the language of the prenup clearly intended to exclude income from separate assets from being divided.  More clear prenup drafting on the issue of "income from separate assets" could have avoided the need for an appeal on this issue.

Also of note here, the Appeals Court points out that the "modification of rights under G. L. c. 208, § 34, does not, in the circumstances, act as an 'unknowing waiver' of the husband's alimony rights."  In other words, the Alimony Reform Act does not automatically invalidate prenup limitations on alimony just because the law changed.

2. Order for Husband to reimburse temporary alimony paid from separate assets. - OVERTURNED

The Husband had requested as a temporary order of $12,000 per month in alimony to be paid from the Wife to him, and the Wife submitted a more modest proposed order of $1,500 per month.  The Judge's order was $2,000 per month and $32,000 total was paid before the alimony was suspended.  The Appeals Court did not agree that the payment of temporary alimony unjustly enriched the Husband, especially since the Wife had made a similar proposal rather than arguing that alimony was excluded completely due to the prenuptial agreement.

While the Wife, in hindsight, probably wishes she had forced the issue at temporary orders more, I'm not sure that would have really made a difference.  The SJC has already ruled that temporary alimony has a different purpose and nature than a final order of alimony.  This decision is consistent with that earlier ruling, regardless of how the court got there.

Also of note here, the Appeals Court points out that the prenup doesn't mention "temporary alimony."  Since the Court's are treating this as essentially a different category of alimony, prenuptial agreements should address temporary alimony specifically or take the risk that it's considered separately.

3. Order for Wife to be solely responsible for a $100,000 liability created during the marriage. - UPHELD

The Wife borrowed funds during the marriage to pay what she termed "legitimate familial obligations."  The Husband indicated the possibility of her obtaining those funds from other sources, and claimed to not know she was borrowing the funds.  Based partially on how the funds were spent (to support adult children of the wife's previous husband), the lower court agreed with the Husband.  The Appeals court found no abuse of discretion in this determination.

Also of note, here, the Appeals Court points out that the prenup "contains no specific provision concerning the payment of marital liabilities..."  This is another area where a clear prenup provision on the issue of the marital debt could have avoided significant legal fees to fight the issue.

For mediation or representation of Prenuptial Agreements contact Attorney Kelsey for a consultation.


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