Tuesday, February 27, 2018

Meet our Intern - Kristyn Stoia

We have a new member of the Skylark Team:

Kristyn Stoia is currently a Freshman at Boston College majoring in English and is also pursuing the Pre-Law track. Outside of academics, she can usually be found at the barn riding for the Equestrian Team, or in the stands during athletic games playing for the BC Band. Kristyn has a keen interest in Law and is looking forward to her first experience in the legal profession.

During her time at Skylark, Kristyn will be working on making the website more accessible for clients and visitors alike. Modifications will be made to make the website better accessible for those who are visually impaired, hearing impaired, and any other impairments that can limit access to our resources. The user experience for every individual who visits our website is a major aspect of our ethos, so making the appropriate adjustments to our website is an endeavor that we’re looking forward to accomplishing.

The inspiration to undertake this project initially game from Haben Girma, who is a disability rights lawyer and advocate and was the very first deaf-blind graduate of Harvard Law. She travels the world sharing her message of equal accessibility for everyone.  Haben addresses the importance of the user experience for individuals of all different capability levels. After having the pleasure of hearing her speak at a conference in New Orleans, we were influenced to take on an accessibility project of our own in the pursuit of making our legal services and our online resources more accessible for everyone.

We’re eager to hear what we can do to make the website more accessible for each and every person. Please don’t hesitate to contact us with suggestions of how we can accomplish accessibility for your individual needs.

Monday, February 26, 2018

Future Changes to Alimony are Limited by Marital Lifestyle: How the Young v. Young Decision Limits Litigated Alimony Cases

Couple Arm Wrestling: Is this the best way to Agree on Alimony?
post by Jennifer Hawthorne

In most families, when spouses decide that getting a divorce may be the best road forward for their family, one of the first questions that almost universally causes concern is what lifestyle will my family live after the divorce. Will there be enough money to support two households and keep us comfortable and even relatively close to the lifestyle we live now?

In Massachusetts, the two basic statutory means for one spouse to provide support for the other’s household after a divorce are child support and alimony. There is a third option that essentially combines the two into unallocated support, which you can read more about by clicking here.

Child Support changes with new circumstances:

If there are children involved, discussions with professionals will usually start with child support which is based on guidelines that dictate a specific formula be applied resulting in a presumptive amount of support. During such a discussion, you will learn that in order to deviate from that presumptive amount, the judge will need to make specific findings, even if you agree. In other words, the guidelines provide a good baseline to begin discussing support in situations where there are children in need of support. You would also learn that anytime circumstances change, child support can change to address the new circumstances so that both households are impacted by fluctuations in either spouse’s income or in changes to some child related costs.

Alimony changes with new circumstances, with some exceptions:

Naturally then, if the conversation turns to alimony, you may expect to hear us talk about the formula in the statute and how families will share the impact of changes if alimony is ordered. Unfortunately, although the ability for a judge to order alimony is statutory, a formula for alimony does not exist. Instead, in order for the court to order alimony, first one spouse must show that there is a need to receive support and that the other spouse has the ability to pay support. Once you have established need and ability to pay, the next question is how much support should be ordered. The statute says that the order should be capped at need or 30%-35% of the difference in the spouses’ income.

At this point, you may be thinking to yourself, well that’s fine, so once I know the percentage of alimony, I can expect it to adjust according to our respective incomes like child support. After all, if you have been part of a long-term marriage you may have grown accustomed to adjusting your lifestyle to your families increasing (or decreasing) income over time, you may also be waiting for us to tell you that alimony will fluctuate with future changes in income impacting both households similarly. Unfortunately, the Supreme Judicial Court recently said, not so fast.

The Young v. Young decision:

In Young v. Young, the Court clarified that an alimony order should always be considered in terms of the parties’ marital lifestyle. The Court explained that this means that a judge cannot simply order a percentage of the difference in income as an alimony order and must determine the dollar amount that is required to keep the lower earning spouse living the lifestyle that exists at the time of the divorce, if possible. Any future gains in income by the other spouse are for that spouse to enjoy since they are occurring after the parties are no long married.

The decision went on to explain that specific dollar amount awards are preferred from the Court’s perspective because self-adjusting awards are more difficult to enforce and they encourage manipulation of the alimony payor’s income to lower alimony payments.  The Court did mention a few specific situations where a self-adjusting order may be appropriate such as where there are large annual fluctuations in income compromising the payor’s ability to pay but where an upward income adjustment and corresponding increase in alimony would not leave the recipient better off than at the end of the marriage, or where the goal of the self-adjustment clause is to keep the recipient spouse in the same lifestyle that existed at the end of the marriage through cost-of-living provisions to adjust for inflation or exchange rate fluctuations when one spouse is living abroad.

The Court also distinguished a self-adjusting durational alimony order from an order of reimbursement alimony which may be ordered where one spouse is on the cusp of a change in lifestyle as the result of education and the other spouse supported the family during the period the soon-to-be higher income earner was completing the education program. These exceptions highlight that for the Court, the important factor is tailoring the order to the marital lifestyle as well as ensuring the award does not exceed the payor’s ability to pay. The Court also noted that the Young decision does not change a judge’s ability to order an unequal property division as a means of accounting for the fact that one spouse has a greater ability to earn income in the future than the other spouse.

The question remaining is where does that leave folks who are ending their marriage but still think of themselves as a family and believe that both family households should benefit from any increase in income the family experiences. After this ruling, is there a way for parties to enter an alimony award that considers future changes in income? It seems clear that litigation is unlikely to result in that sort of order absent a unique set of circumstance that allow the judge to make a specific finding of a need for a self-adjusting order.

The Benefits of Dispute Resolution and Agreements:

Like other decisions of the Court discussing self-adjustment clauses, this decision does not prevent the parties from agreeing to a percentage as an alimony award. By using an alternative dispute resolution process such as mediation or Collaborative Law, spouses could agree that they will adjust the alimony award to a certain percentage of the difference in income over time writing in an explanation of why they believe that order is fair and equitable. In other words, instead of asking a judge to make specific findings and hoping that a judge views those circumstances as worthy of a percentage order, the spouses could provide language in a Separation Agreement taking away the need for the judge to make specific findings.  By taking the decision making out of a judge’s hands, the spouses may be able to create a plan for supporting two households that feels fair to both of them without having to predict the future or use property division to attempt to create similar future lifestyles for the spouses.

While reaching such an out-of-court agreement may initially seem like simply an opportunity for recipient's to receive more than they might through the court process, there are advantages to both sides by entering into dispute resolution.  There may be other issues that the payor wants agreement on, which might not be available from the court.  In addition, both parties can take advantage of the cost and time savings, and the certainty that reaching an agreement provides.  If you find yourself in court wondering about the best way to determine how to deal with future changes in circumstances, the best answer is to craft a better and more comprehensive agreement now.  Consider whether an out-of-court dispute resolution professional can help.

Tuesday, December 19, 2017

Skylark welcomes Jennifer Hawthorne, Collaborative Attorney & Mediator

Skylark Law & Mediation, PC is excited to welcome Jennifer Hawthorne to our family of collaborative practitioners.  Jennifer is a trained mediator and collaborative family and probate attorney with a background in financial services.   She is the mother of three wonderful children and a new puppy.  She is also on the Board of Directors of the Massachusetts Council on Family Mediation.

Here is what Jennifer would like to share about her journey to Skylark:

My path to working as an associate at Skylark Law and Mediation has been a little unusual. Many times, the career path for a family law lawyer/mediator goes something like this this:

For me, so far, my path has been a little different:

For some, this may seem like a backward step in the “normal” path of a law career. For me, if feels like the most natural step down my path.   Opening my firm had nothing to do with feeling like I had reached the point in my career where I was ready to run a business in addition to practicing law. It was much more about my desire to strike an appropriate work life balance for a new lawyer with two small children and the economic circumstances that developed while I was in law school and have persisted for new lawyers since 2008.  At the time I decided to work for myself, after some thought about what I had learned in law school and while on co-op, I decided to start practicing two areas of law, estate planning and family law.

Through a series of very fortuitous meetings in 2013, I met Leila Wons, Marcia Tannenbaum, and Justin Kelsey who all encouraged me to take a mediation training and a Collaborative Law training. I took their advice and took both of those trainings in 2013. During those trainings, it became clear to me that resolving divorce and family cases (when possible) through an out-of-court process that focuses on reducing conflict and focusing on the future relationship and well-being of both parties is of the utmost importance to me as a practitioner.

Shortly after taking mediation training in 2013 an opportunity came up to join a program through MWI (Mediation Works, Inc.) to be mentored while mediating in the Norfolk Probate and Family Court. Through that program, I truly became a mediator and eventually a mentor to new mediators and not just an attorney. I spent a year and a half mediating once or twice a week for anywhere from 2-6 hours. During that year and a half, I continued to expand my practice through networking and found a career mentor and friend in Justin Kelsey.

In 2015, my third child was born so my life circumstances dictated that my work should be a bit closer to home for a short amount of time. I continued working with my private clients but took a step back from the in-court mediation work. At some point during this time, Justin offered an office sharing arrangement that was less sharing and more me taking advantage of his generosity to use his conference rooms and take over a desk at Skylark. Through office-sharing Beth, Melissa, Val, and Julie became my co-workers and trusted friends well before I joined Skylark in any official capacity.

Then in 2016 my own life path shifted again when my father became ill. It was very difficult to juggle a solo practice, being a parent of three small children, and being an additional hand in caring for my father. My Skylark family was a huge source of support both professionally and personally. On the days I was able to make it into the office, I felt so much relief. It felt more like going home than going to work which given the nature of our work speaks volumes about the culture of our office.

When I was offered an Of Counsel position and later an Associate position at Skylark, it felt like the most natural step I can take in my career. I am excited to be joining a firm where I know that folks have a common mind set regarding work/life balance, where all my co-workers think of each other as an extension of their own families, where we all truly believe that cases should be resolved amicably when possible, and where there is a deep belief that our clients should be treated with the same respect and care we show each other. I am thrilled and honored to be a part of the Skylark team and I cannot wait to see where my path leads next. 

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

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