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Tuesday, October 26, 2010

Most "Non-Custodial" Parents can still be significantly Involved in their Childrens' Lives

Many parents facing the prospect of a divorce or break-up where children are involved place a great deal of importance on obtaining "sole physical custody" or "joint physical custody" of the child or children. Parents are often devastated to find out that their former significant other is seeking sole physical custody, as if that phrase automatically means that there is an intent to preclude one parent from the child's life. These phrases have unfortunately taken on pop culture definitions that more often than not vary from reality.

Physical custody refers to where the child lives. If a child lives primarily at one place, usually thought to be about two-thirds of the time or more at the same residence, that child is considered to be in the "sole physical custody" of the parent who shares that address. Usually, children who are living in the sole physical custody of one parent have some sort of "visitation" schedule with the "non-custodial" parent. The details of that visitation schedule, also sometimes called a "parenting plan", are dependent on both parents. For some "non-custodial" parents it is every other weekend, for others it could be two or three days each week.

Even a parenting plan that falls into that two-thirds vs. one-third mold still includes a significant amount of time that the children are with the "non-custodial" parent.

In addition, not having sole physical custody does not mean that a parent cannot be involved in major life decisions involving the child. Or put another way, non-custodial parents are still able to contribute to the major life decisions necessary for their child. The ability to be involved in such decisions is determined by which parent or parents have legal custody of the child. In other words, while the sole physical custodian of the child may decide what clothes your child will wear to school, legal custodians can (and in most cases should) still be involved in decisions such as who the child's doctor will be, whether or not your child will have surgery, and what school the child will attend.

Finally, absent a restraining order or other order of the court to the contrary, all parents have the right to attend their children's public events, such as sporting events, concerts, etc. Most courts do not consider these types of public events the exclusive time of either parent. Although how you interact with the other parent at these events may depend on your ongoing relationship and the appropriateness of said interaction, it is usually still beneficial for a child to know that both parents are there cheering them on, even if separately. While this is not necessarily "quality time" with your child it remains another way non-custodial parents can remain involved in their children's lives.

Monday, October 25, 2010

Should I bring my new Significant Other or my Children to Family Court with me?

In most cases bringing your new significant other or your children to court with you is a bad idea.

Bringing a Significant Other:

In most cases having a third party in the courthouse (especially a significant other) inflames the other party and makes settlement less likely. While this is not always the case, the risk of making settlement more difficult is usually not worth the benefit of having a third party there.

Also, court is relatively boring. Your significant other will be able to wait with you in the courthouse but he/she will not be able to attend any family service meetings (i.e. required mediation prior to the court hearing). Court involves a lot of waiting around and there is usually something better that people can be doing with their time. For these reasons I usually recommend that clients come alone to court, but in the end it is your call.

Bringing your Children:

Whether or not the hearing involves your children bringing them to court with you is a bad idea for numerous reasons.

1. There is a saying that in criminal court we see bad people acting their best, and in family court we see good people acting their worst. Family court is a stressful place and oftentimes involves very personal and emotional issues. Exposing your children to this is unnecessary and can be damaging psychologically.

2. There is nothing for children to do in the courthouse. These buildings are not designed with children in mind and are not fun places to be. Your children will be able to wait with you in the courthouse but they will not be able to attend any family service meetings (i.e. required mediation prior to the court hearing) and they are typically not allowed in the courtrooms. Court involves a lot of waiting around and children will be very bored.

3. In the event the case does involve your children, it is even more damaging to have them in court. Children pick up on more than most people give them credit for, and knowing that a court hearing is happening (never-mind being there) can be very stressful for children. Children will take responsibility for the outcome even though they have no control over it and blame themselves if their parent is unhappy. Don't place this burden on your child.

4. Finally, there is no added value to having your children in court. In the unlikely event that the Judge wants family service to speak to your children, you will be given the opportunity to come back with them. Having them there at the time of hearing exposes them to unnecessary stress without any potential benefit.

For more information about best practices to protect your children from the detrimental affects of court actions between parents read the following brochure: Planning for Shared Parenting: A Guide for Parents Living Apart.

Friday, October 22, 2010

Do I have to Disclose My Residential Address in a Divorce?

Where you reside can affect whether or not the Court has jurisdiction over your case as discussed in a previous post: Where you get Divorced matters! - British woman loses rights to £1.2 Million Pension.

Assuming that Massachusetts has jurisdiction, you still need to disclose your address pursuant to Massachusetts Domestic Relations Procedure Rule 11 which states in pertinent part: "A party who is not represented by an attorney shall sign his pleadings and state his address, telephone number, and e-mail address if any." The Court needs to know your address so that the Judge can verify that jurisdiction is proper and in the event the court needs to send you Notice of any hearings or other matters. Likewise the opposing party needs your address in order to send you proper notice of pleadings pursuant to Massachusetts Domestic Relations Procedure Rule 5(b) and a P.O. Box is not considered sufficient.

It is possible to withhold your address from a party to a divorce case if you have reason to believe that disclosing your address will place you in danger. If this is the case, you must file any paperwork with the Court in person with a Motion to Impound Address and explain to the Judge why you need your address to be kept hidden from the other party. This is usually used in cases of domestic violence.

Tuesday, October 19, 2010

New Divorce law in New York includes Temporary Spousal Support Guidelines

UPDATE: There is pending legislation for major changes to the alimony statute in Massachusetts. The Alimony Reform Act of 2011 was filed on January 18, 2011 and you can learn more about the Act at MassAlimonyFormula.com or in our recent blog post highlighting the differences between the bill and the current law.

In March of 2010 Attorney Justin Kelsey of Kelsey & Trask, P.C. was contacted by the NYS Law Revision Commission because of his involvement in co-authoring the Divorce Spousal Support Calculator. The NYS Law Revision Commission was asked by a member of the New York State Assembly to investigate how other states were addressing the issue of alimony formulas. Attorney Kelsey discussed the issues at length during a telephone conversation with the executive director of the Commission and expressed his opinion (as described in a past blog post) that a formula at least has the advantage of treating everyone the same and offering consistency to the treatment of alimony by different Judges. It is possible that Attorney Kelsey played some small part, therefore, in the newest changes to New York's alimony provisions.

In addition to adding No-Fault Divorce, a recent New York law that went into effect this month also contains a formula for calculating "temporary maintenance." This temporary spousal support defined in New York Domestic Relations Law Section 236 Part B(5-a) only lasts until either party dies or a final award of maintenance is awarded under Part B(6). Although, there is no formula for post-divorce maintenance, the temporary maintenance formula would likely be instructive for long-term maintenance in many cases.

Similar to the Massachusetts statute, post-divorce maintenance is based on numerous factors including length of the marriage, age and health of both parties, income-earning capacity, needs of the children etc. The calculation for temporary support in the new statute, however, is based on a formula, with the ability to deviate if application of some of these same factors suggests the calculated award is unfair. Essentially this sets up the presumption of a formula with the ability for parties to still argue against the use of the formula.

The formula is explained in Appendix B of the Temporary Maintenance Guidelines Worksheet available on the NY State Court's website. Essentially it calculates whether the payee's net income is more than 2/3 of the payor's net income, in which case there is no alimony award. If the payee's net income is less than 2/3 of the payor's net income then the award will be the lessor of

a. 30% of payor's net income minus 20% of payee's net income; or
b. 40% of the total net income of both parties minus the net income of the payee.

In addition there is a low income adjustment in some cases and the temporary maintenance formula only applies for payors whose net annual income is below $500,000.

For more information and a critique of this new law read this news story on YNN, or this blog post on Legal Match Law Blog.

We will not be updating the Divorce Spousal Support Calculator to include this formula at this time because the New York formula deals only with temporary maintenance orders, while the other formulas currently included in the calculator are intended for post-divorce support.

Monday, October 18, 2010

Why does the Texas GOP want to rescind No-Fault Divorce?

The Texas GOP in releasing their 2010 State Republican Party Platform have raised considerable amount of controversy over their ultra-conservative positions on criminalizing gay marriage, regulating school teaching of alternate theories to evolution, banning pornography, and other issues.

Included in the Platform is also an "urging" that the Texas legislature rescind no-fault divorce laws stating "We believe in the sanctity of marriage and that the integrity of this institution should be protected at all levels of government." Not surprisingly, the Texas GOP has joined the Catholic Church here by claiming that no-fault divorce is an attack on the "sanctity of marriage."

The Catholic Church recently claimed that allowing no-fault divorce in New York would raise the divorce rates in New York. Interestingly, the divorce rates in New York, though low compared to all 50 states (ranking 33rd), are still higher than a state like Massachusetts where No-Fault Divorce has been the law for more than thirty years (3.4 per 1000 people per year in New York vs. 2.5 per 1000 people per year in Massachusetts according to StateMaster.com).

The disconnect in this argument stems from the faulty assumption, of both the Texas GOP and the Catholic Church, that making it harder to get divorced and protecting the sanctity of marriage is the same thing. But they are not the same thing. Protecting the sanctity of marriage should be about raising the quality of marriages, about educating people before they get married, and even about saving people from bad marriages. Does forcing a victim of domestic violence to go through a harder process to escape his/her abuser protect the sanctity of marriage or give marriage a bad name?

Making it harder for people to obtain divorces doesn't lower divorce rates, but it does increase domestic violence, crowd courts, and discourage mediation. How do any of these consequences protect the sanctity of marriage?

What happens to my case if I move out of state?

What happens to your case when you move out of state, depends on the type of case, and what stage your case is currently in.

Divorce Cases:

If your Divorce case has not been filed yet and you or your spouse move to another state, that state may gain jurisdiction over your case after a certain period of residency. For persons moving into Massachusetts from other states, Massachusetts gains jurisdiction over your case after 1 year of residency (or in other unique circumstances) and you can then file for Divorce in Massachusetts. If you want to file in another state you will have to meet their residency requirement before you can file there. In addition, another state may not be able to take full control over your entire case if you have left children or property behind in Massachusetts. You should consult with an attorney in both states if you are in this situation to make sure you choose the appropriate forum for your case.

If your Divorce case has already been filed in Massachusetts and you or your spouse move to another state, then Massachusetts still maintains jurisdiction over you and your case. That means that Massachusetts can still make decisions about your property, children, and support issues, even if you don't live here anymore. Although, there are unique issues that relate to relocating children out of state, for the most part you will still need to participate in the Massachusetts divorce case. If you hire an attorney you may not have to attend all hearings, because they can attend for you and explain to the Court the unique circumstances of your case and your current residence out-of-state.

If you have settled a Massachusetts divorce case and both parties agree that there has been an irretrievable breakdown of the marriage and agree on all other issues related to their marriage, as described in a Separation Agreement, then you can file a Joint Petition for Divorce under the provisions of Section 1A. In most cases, both you and your spouse must attend the uncontested divorce hearing and testify under oath that your marriage has suffered an irretrievable breakdown and that you signed the Separation Agreement freely and voluntarily. It is possible for only one party to appear at the hearing if there are special circumstances that prevent the other party from attending. To be excused from the uncontesting hearing you must file a Motion and Affidavit stating the reasons why the party cannot attend. The Affidavit should also include the testimony necessary for the uncontested hearing. You should consult an attorney regarding the drafting of the necessary language.

Modification/Contempt cases:

If you have a Divorce or Paternity Judgment in Massachusetts but have since moved out of state, Massachusetts will still retainer jurisdiction over certain parts of your case. For example, if your children still live in Massachusetts then any Modification or Contempt actions relating to the custody, visitation or support of the children will still take place in a Massachusetts Court. If you have moved out of state with the children you should consult with an attorney to figure out which state now has jurisdiction over these issues.

At Kelsey & Trask, P.C. we have handled many cases for out-of-state clients and can conduct a Free 1-Hour Consultation via telephone or Skype if you are interested in learning more about our services and how we would help you with your case.

Wednesday, October 13, 2010

What is Parental Alienation?

Put simply, Parental Alienation is the term used to describe when one parent turns a child against the other parent. However, Parental Alienation is anything but simple.

Even the issue of how to define Parental Alienation is hotly contested. As reported in a recent AP article, Psychiatric experts asses parental alienation, the American Psychiatric Association is debating whether or not to include "parental alienation syndrome" as a mental disorder in its updated catalog of disorders. The debate centers around whether the concept is real and all to common or whether it is overused. For example, according to some domestic violence advocates parental alienation is a concept used by abusers to place blame on the other parent and take focus off the abuse.

Regardless of whether you believe parental alienation should be recognized as a mental disorder, it is obvious that any activity intended to turn your child against their other parent is not in the best interest of the child. Even worse, it is not even an effective tactic because any alienating comments to your child are more likely to hurt you in a custody case than help you. As one Judge in the Plymouth Probate & Family Court is fond of stating: "I award custody of children to the parent best able to share with the other parent."

Avoiding parental alienation is one of the reasons that all divorcing parents in Massachusetts are required to take part in the Parents Apart Program, which is designed to inform parents about the difficulties children face in a divorce and how to avoid forcing that conflict on your children.

In addition, at Kelsey & Trask, P.C. we include in the majority of our Agreements relating to children the following language:

"Both Parties are prohibited from discussing (and from allowing others to discuss), in any manner, any Court proceedings with or within earshot of the children.

Both parties are prohibited from disparaging either parent and/or their significant others (and from allowing others to disparage either parent and/or their significant others) with or within earshot of the children."

Of course, putting this in an Agreement doesn't necessarily prevent parents from making comments or taking actions that could alienate the children from the other parent. But at least adding this provision is one more reminder to parents that they shouldn't involve their children in the divorce process or expect their children to be able to handle discussions about adult emotions due to the divorce. In the end it's up to parents to put their children's well-being above their desire to hurt their ex-spouse. As you will hear many divorce attorneys and judges ask: Do you love your kids more than you hate your ex?

Tuesday, October 12, 2010

Are there any provisions of a Separation Agreement then must Merge?

For an explanation of the difference between merger and survival of Separation Agreement provisions read our past post on this question.

There are two types of provisions that cannot survive a Judgment of Divorce but must be merged. These are provisions relating to child custody/visitation and child support.

The Court retains jurisdiction over provisions relating to child custody/visitation to protect the children. For example, in the event one party becomes unfit to parent the children it would be detrimental to the children to have that provision survive and be unchangeable. Although there is another method by which a parent can give up their parental rights permanently (through a Waiver of Parental Rights), there is not any way that a party can guarantee they will keep their rights forever. The right to be custodial parent will always be subject to your continued fitness to parent your children.

Although typically paid to the custodial parent, child support is also for the benefit of the child, not the parent. Therefore, you cannot give away your child's right to seek greater child support if there is a material and significant change in circumstances. Accordingly, the court requires that child support provisions merge as well.

These are the only two types of provisions that must be merged in any case involving children. There may be other provisions, however, that in certain circumstances the Court may require you to merge. One example of this is in very long-term marriages (such as a 30 year marriage or longer), the Court may refuse to allow parties to survive a waiver of alimony. Some Judges have expressed the opinion that it is not fair and reasonable to completely separate the finances of parties who have been married for such a long time. This could depend on other circumstances in the case as well.

For more information on whether your Agreement properly protects you with regards to the merger and survival clause you should consult with an Attorney. To consult with Kelsey & Trask, P.C. please call us at (508) 655-5980 or e-mail us.

Monday, October 11, 2010

What is the difference between Merger and Survival?

One of the most important legal distinctions for clients to understand when signing a Divorce Agreement (also commonly called a Separation Agreement) is the difference between merger and survival. The distinction between these two designations could mean all the difference in whether an Agreement is fair and reasonable or not. It can affect whether or not you will have to return to court in the future, and could determine issues as important as whether or not alimony can be changed (increased, decreased, added, or eliminated) in the future.

Unfortunately, most pro se parties who prepare Separation Agreements on their own do not understand what this language means. Oftentimes I have also found that parties who used a mediator, but did not review their Agreement with a lawyer, do not fully understand what they've agreed to when it comes to the merger/survival clause. This clause is so important that spending a few hundred dollars to at least review your proposed Agreement with an attorney could save you much more in the long run.

So.... What is the difference between Merger and Survival?

The technical legal definitions of these terms are as follows:

If a portion of the Separation Agreement merges then this means that said portion becomes absorbed into the Judgment of Divorce, and does not exist as a separate entity. Any portion of an Agreement that merges with the Judgment of Divorce is open to modification if one party can show that there has been a significant and material change in circumstances, and that change warrants a change in the Agreement.

If a portion of the Separation Agreement survives then this means that said portion does not combine with the Judgment of Divorce, and continues to exist as a separate contract between the parties. Any portion of an Agreement that survives the Judgment of Divorce is NOT open to modification.

In simple terms:

Merged agreements can be changed in the future.

Survived agreements can NOT be changed in the future.

Although it is very unusual to have property divisions re-opened by the Court, the safest way to ensure that it cannot be is to clearly state that all property division sections survive the Judgment of Divorce. The issue of merging or surviving alimony is often more complicated. For example, while the parties can waive alimony as part of an agreement, that waiver is not forever binding unless the parties also agree to survive that agreement. Obviously this can be a significant difference if there is a change in the future that would warrant an award of alimony (such as one party becoming disabled). We encourage clients to give a lot of thought to this distinction before making a decision on this issue because it could have a significant impact on their future finances.

If you are not sure whether your Agreement protects you when it comes to the merger/survival clause then you should meet with an Attorney to discuss this. To meet with Kelsey & Trask, P.C. you can call us at (508) 655-5980 or e-mail us.

Thursday, October 7, 2010

Restraining Orders are not Force Fields

In tonight's episode of Community ("The Psychology of Letting Go" on NBC) one character treats his Restraining order like a force field. By moving towards the defendant, he forces the defendant of the restraining order to move away so that the defendant can stay at least 25 feet away.

In reality, restraining orders are not force fields. Although, a plaintiff cannot technically violate their own restraining order, a Judge will likely vacate the restraining order if they find out that the plaintiff has been contacting or approaching the defendant. That type of behavior demonstrates that the plaintiff is not in fear of the defendant.

In Massachusetts, M.G.L. ch. 209A provides that a plaintiff can obtain an abuse prevention order (commonly referred to as a restraining order) if there is attempted or actual physical harm or "placing another in fear of imminent serious physical harm." If a plaintiff is able to approach or contact the defendant then that is strong evidence that they are not in fear of imminent serious physical harm.

Free One Day Seminar on Coping with Divorce

A group of researchers at Skidmore College will be sponsoring free one-day educational workshops this Fall in the Boston area for parents coping with divorce. At the workshop, you will have a chance to connect with other divorced parents. You will learn strategies for letting go of anger toward an ex-spouse and for moving toward a more peaceful, forgiving perspective. You will also learn strategies for reducing conflict with your ex- over parenting issues.

For more information and to sign up for our FREE coping with divorce workshop and research study: www.tinyurl.com/copingwithdivorce or email: divorce@skidmore.edu or call: (518) 580-8123

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