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Thursday, December 30, 2010

Can I Sleep with my Wife or Husband during our Divorce?

This question was recently posted on Avvo.com and as a regular contributor I answered the question on that site. Since I have received a positive response to my answer I have decided to reprint it here:

Question: What are the rules about husband and wife sleeping together while they are getting a divorce? One of the pair doesn't want the divorce and is willing to work hard to turn things around. Right now there is no hope but I want there to be and am praying for a miracle. (spelling errors corrected)

Answer: There are no court rules or statutes that prevent a husband and wife from sleeping together before, during or after a divorce. In fact, the only law in Massachusetts preventing people from sleeping together is a prohibition on adultery which is not enforced anyway.

However, it could be extremely unhealthy for you to continue to sleep with your spouse if you are hopeful that it will result in a reconciliation but your spouse is adamant that it will not.

In Massachusetts, if only one person in the marriage believes that the marriage is over, then they may file a Complaint for Divorce under Section 1B. Under this no-fault statute if that person is willing to state under oath that they believe the marriage is irretrievably broken down with no chance of reconciliation, then the Judge will grant the divorce and the other party is helpless to stop it once the person's mind is made up.

If there is any chance of saving your marriage, it is most likely to come from marriage counseling and not from "sleeping together". You may also want to consider marital mediation. For more information about reconciliation visit our previous post as well.

Tuesday, December 28, 2010

Is it a Crime if my Spouse Reads my E-mail?

The short answer is that your spouse has probably not violated any law by reading your e-mail, even if it is against your wishes. The law of technology is constantly changing, though, and you may want to think twice before snooping in your spouse's email.

The current law varies from state to state and you might be subject to criminal charges as the law catches up with technology. In Massachusetts, the First Circuit Court of Appeals in 2004 ruled that e-mail snooping was not a violation of the wire-tapping statute, and therefore not a crime under that law. If combined with concerning communications, e-mail snooping may be enough to trigger the criminal harassment statute in Massachusetts, though this would depend more likely on the nature of the other communications.

There is a Federal Law, the Electronic Communication Protection Act (ECPA), that prohibits interception of an e-mail while it is being transmitted. However, ECPA does not prohibit snooping in your e-mail inbox or outbox (i.e. before or after the e-mail has been transmitted).

Although snooping is not considered "hacking" under the ECPA, it may be under some state laws. In Michigan, prosecutors are attempting to apply their anti-hacking statute to a case of a Husband accessing his Wife's account to gain information about an affair. Although, many experts are quoted in a Today story as questioning this application of a law intended for a different purpose, the case raises interesting questions about two issues: What expecation of privacy does a Wife have on a shared computer (especially where her passwords were written down next to the computer) and how has the "snooping" damaged the Wife?

The damage to the Wife is certainly different than the damage experienced by a victim of identity theft or other more typical security "hacks", but this doesn't mean she is not damaged as well. It may be the case that applying the anti-hacking statute to a domestic case is not a good fit, but it is time for the legislature to catch up with today's technologies and impose either civil or criminal sanctions on e-mail snooping. The fact that such behavior is very often associated with controlling and/or violent domestic relationships should be enough to warrant prohibition of these activities.

If you are considering this type of snooping, even if you live in a jurisdiction where it is not against the law, you should consider the possible backlash. A Family Court Judge could consider this threatening behavior or otherwise hold it against you and the backlash could be much more damaging than any information discovered (even if it was admissible).

If you are concerned about your e-mail being wrongfully accessed, read our previous post about protecting your privacy.

You can view the Today Story video below:

Visit msnbc.com for breaking news, world news, and news about the economy



Sunday, December 26, 2010

Scaling the Summit Word Cloud

Wondering what we've been writing about. Below is a word cloud generated by Wordle displaying our most written about subjects:

Wordle Image

Wednesday, December 22, 2010

Should Parenting Plans include Holiday schedules?

As discussed in a previous post a Parenting Plan is a comprehensive agreement which sets out both the time that children will spend with each parent as well as the rights and obligations of each parent to the children and the other parent during their parenting time. Parenting Plans can be made specific or flexible depending on the requirements of each case but usually contain a base schedule.

In most cases it is also advisable to supplement the base schedule with a holiday schedule. At Kelsey & Trask, P.C. we have a template holiday plan that includes proposed schedules for many of the typical holidays that parents and children enjoy sharing together. However, we often encourage our clients to try and create their own holiday plans based on their family traditions, trying to keep as much of the family traditions intact for children already experiencing many changes.

If you are a separated or divorcing parent, we suggest that you pay special attention to how your children experience holidays and how each parent can continue to share in those traditions.

Tuesday, December 21, 2010

Why You Should Try to Avoid Divorce Court?

Although sometimes necessary, appearing in Court is often a lengthy, expensive, and disappointing trial (pun intended). Any combination of failed preparation, miscommunication between client and attorney, or incomplete discovery can cause the process to result in imperfect and incomplete Orders. Sometimes just the limitations of the court process (such as the limited time of the Judge to hear each case) can result in frustrating court appearances.

In order to avoid unnecessary costs, you may want to consider alternatives to litigation such as Mediation or Collaborative Law. For more information about those processes read our past posts:

What are the Advantages & Disadvantages of Mediation

Dramatic Impact of Mediation on Children of Divorce

Mediation, Collaborative Law or Litigation: What's your Vote? - A 3 Part Post:

The Cleavers Divorce: Collaborative Law, Mediation or Litigation - Part I

The Huxtable's Divorce: Collaborative Law, Mediation or Litigation - Part II

The Honeymooners' Divorce: Collaborative Law, Mediation or Litigation - Part III

Even if mediation or collaborative law is not available in your case (these processes both require joint and volunteer participation), it is still possible to reach agreements with the proper preparation and forethought. Make sure that you provide your attorney with all of the information necessary for them to properly and timely prepare your case, and they should be able to make appropriate and timely proposals for settlement that could help you avoid costly and disappointing court appearances.

Monday, December 13, 2010

The 15 Most Expensive Divorces

There is very little that the average person can say they have in common with celebrities. We don't get chased by the paparazzi, we don't have personal chefs or personal trainers, and we can't get lost in our homes. But when it comes to celebrity marriages, they are just as likely (if not more likely) to end up in divorce court. Of course, when a celebrity, CEO or media mogul gets divorced the financial scale of their marital estates is very different than the average divorce case.

Below is a graph of the top 15 most expensive divorce payouts, ranging from 80 million to 1.7 billion dollars:


Sources:
Wikipedia List of Most Expensive Divorces
The Telegraph Article: Tiger Woods: the world's top ten highest divorce settlements
Burns & Associates: Top 15 Most Expensive Divorces Of All Time

Friday, December 10, 2010

Does a Criminal Record affect Child Custody?

If one of the parents in a custody case has a criminal record, the types of crimes on their record could have an effect on their chances of obtaining custody. In custody cases the issue is always going to come down to whether or not the best interests of the child might be affected.

In the most extreme case, in which one parent has been convicted of first degree murder of the other parent, the law specifically prohibits visitation with the children until they are of a suitable age to assent.

Similarly, but to a less serious degree, in making custody and visitation determinations the court will consider crimes that would cause one to question the fitness of a parent. These types of crimes would obviously include any violent crime convictions which could call into question whether the children would be in danger around a parent who has shown themselves to resort to violence when faced with conflict. In addition, drug and alcohol abuse offenses would call into question a parent's ability to care for their child without supervision.

Other crimes that might seem unrelated, such as theft or prostitution, may not cause a Judge to question the parent's ability to care for the child, but rather their suitability as a role model. These types of convictions might be a reason to limit time with the child, but may not require supervision (assuming that this criminal behavior is in the parent's past).

Judges have access to the criminal record of parents, and when issues are raised like those discussed above, the court will often request the records of both parents before making a determination. This is also true in any 209A Restraining Order cases.

It is also important to note that the Criminal Offender Record Information (CORI) system is changing in 2012. All of the changes are listed here. Some of the changes that could affect your case, include a new procedure for having an inaccurate record amended, and new permissions for access to sealed CORI by court order in domestic abuse/child custody actions and where a person’s safety is at stake.

Thursday, December 9, 2010

How Much Will my Divorce cost? How Can I Pay for it?

The one question that everyone asks at the end of their initial divorce consultation is "how much is this going to cost?" And with good reason, because cost is a valid concern, especially for many of our clients who have lower or middle class incomes and lifestyles. Unfortunately, the answer is vague and unsatisfying because it depends on so many factors. I try to provide clients at the initial consult with some idea of what I expect the range to be for their case based on what I've learned during that brief time. But some of the factors are truly unpredictable, most significantly how much the other side wants to fight.

There are many ways to reduce the cost of a divorce. In some cases, where both parties are well-informed and willing to cooperate, mediation can be a cheaper option then hiring two lawyers for the whole process. Even if you both have attorneys, following the court Rules and providing documents and other information in a timely fashion can help reduce the costs. For example, just spending the time to draft a complete Financial Statement saves your attorney time having to walk you through each individual question.

Unfortunately, if your spouse does not cooperate with the court Rules and Orders by trying to hide assets, or delaying the disclosure of documents, the costs increase because your attorney has to do more work to chase down the information necessary to advise you. This can be frustrating for clients because it means they do not have control over some of the reasons that attorney's time (and therefore fees) can increase significantly. Because family court is a court of equity it is possible to request that the opposing party pay for fees that are due to their delay or wrongdoing, but often these requests are denied or ordered only partially.

So what do you do if you don't have the funds to pay for divorce counsel, or don't have access to the funds because your spouse controls the finances?

For those with significant marital estates, a recent New York Times article has highlighted the latest in divorce funding options: companies that invest in your divorce. Of course, these companies request a contingency fee in exchange for funding your legal fees (something which attorneys are not allowed to do in divorce cases pursuant to the ethics rules). Because they expect a contingency, these companies only invest in high asset cases, one of the owners describing their ideal case as one with two to five million dollars in marital assets.

For many of our clients and probably many of our readers, these figures are not realistic. However, if you cannot pay for a lawyer there are a number of options for you to still obtain legal advice. There are numerous legal aid services that you may qualify for, and there is a webpage that contains a directory of these services available in Massachusetts.

In addition, it is possible that the Judge will order your spouse to pay your legal fees if he or she has control over assets that would help you pay for counsel. This request will depend on the specific facts of your case and the availability of funds. You may be able to find an attorney who will take your case and file such a Motion based on a small retainer and the likelihood of receiving further funds.

Also, many attorneys offer a free or reduced fee initial consultation. Even if you are unable to eventually hire that attorney, the initial consultation could still provide you with invaluable information regarding your rights and obligations in a divorce case.

Finally, there is also a Lawyer-of-the-Day program in many courts in Massachusetts. As part of that program an attorney volunteers their time for the day to answer legal questions and help potential litigants fill out forms in the courthouse. If you plan to meet with the Lawyer of the Day try to get to the Courthouse early (it opens at 8:30 A.M.) because the line can fill up quickly on a busy day and sometimes they only stay until 3:00 P.M.

Wednesday, December 8, 2010

What's in a Name? - The Problem with Labeling Parents "Custodial Parent" vs. "Visiting Parent"

It's difficult for people who haven't been involved in a divorce case to understand why divorcing spouses can be so mean to each other, especially when children are involved. But the emotions that couples experience when going through a divorce can be like riding a roller coaster. Many experts describe the emotional process of dealing with a divorce as similar to that of dealing with the death of a loved one, including all the same stages of grief: denial, anger, bargaining, depression and acceptance. When divorces involve children, these emotions are amplified by parent's fears that they will "lose" their children.

This is why the labels of "custodial parent" and "visiting parent" carry so much baggage with them, and can make people fight when they don't need to. When it comes to figuring out the best way that both parents can remain involved in the lives of their children, we believe it is more important for clients to focus on what the actual plan is, rather than the labels. We recently wrote a post about Parenting Plans, that focused on how parents can come up with a Parenting Plan as part of their divorce case.

But it is also important to know what significance the labels have. As the court moves away from the "custody vs. visitation" model towards a "parenting plan" model much of the old significance to these labels has been drained from them. For example, the Child Support Guidelines use to simply specify that the custodial parent pays the non-custodial parent the figure calculated by applying the Child Support Guidelines Worksheet. However, the new Massachusetts Child Support Guidelines clarify as follows:

"These guidelines recognize that children should enjoy parenting time with both parents to the greatest extent possible consistent with the children’s best interests.

These guidelines are based upon the child(ren) having a primary residence with one parent and spending approximately one­third of the time with the other parent.

Where two parents share equally, or approximately equally, the financial responsibility and parenting time for the child(ren), the child support shall be determined 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..."

This clarification obviates the need for using the label of custodial parent, because the amount of time the child spends with each parent in the parenting plan will define how we apply the guidelines.

Likewise, the title of "sole custody" vs. "joint custody" used to have definite legal significance regarding what standard would be applied when a parent wanted to remove the child from the Commonwealth and move to another state. The differences in the applicable standards was the weight that should be given to the benefit of the relocation to the parent seeking to move. In the case of "sole custody" the benefit to the relocating parent is given so much weight that it is a difficult burden to overcome, and in many cases relocation is allowed. In the case of "joint custody" the benefit to the relocating parent is not given as much weight, and the disruption to the non-moving parent's parenting time will often outweigh the benefits of the move, and so in many cases relocation is not allowed.

But recent court decisions have cut back on the significance of the labels in these cases as well, focusing more on the actual parenting time spent with the children by each parent to determine whether the children were truly living equally with both parents or not. In Altomare v. Altomare 77 Mass. App. Ct. 601 (2010) the Court held that the parenting time arrangement, which involved significantly more time with the Mother, was more important than the label of shared physical custody. The Court in Altomare looked past the "shared physical custody" label and indicated they would treat the case as a "sole physical custody" case for purpose of applying a removal standard, because that was what the parenting time actually reflected. See also Katzman v. Healy, Appeals Court of Massachusetts.No. 09-P-2341. (2010) in which the Appeals Court overturned a trial judge who, according to the appeals court, mixed the standards together in the case where the Mother's label was "sole physical" custodian, but also where Mother had significantly more parenting time with the children.

Because the history of these cases is important, we do not mean to imply or express the opinion that the labels have lost all legal meaning. However, it is clear that the Court is leaning away from these labels and towards an analysis of how the actual parenting time impacts the social, emotional and financial effects on children and their parents. If you are mired in a fight over labels, you should consider re-focusing your attention on the best Parenting Plan for your family and let the realities of that plan inform these other issues, rather than letting the cart lead the horse.

Tuesday, December 7, 2010

What if I want to try Reconciliation? Is there a way to protect myself?

One of the questions that I ask clients in our free 1-hour initial divorce consultation, is whether or not they believe their marriage is irretrievably broken down with no chance of reconciliation. This is the standard in Massachusetts for a Judge granting a divorce. Many potential clients, despite having scheduled a divorce consultation, are actually unable to answer this question because there is still some "chance of reconciliation." In these instances I explain their rights in a potential divorce case but recommend that they try counseling and not come back to my office unless they are sure about their answer. For some, they fear that trying to reconcile will put them in a vulnerable position financially and for those instances there is now a solution: Post-nuptial agreements (also called marital agreements) allow married couples to make contracts that will control what happens if they get divorced.

A post-nuptial agreement can resolve the financial concerns and assure someone they are protected, so they can then focus their energies on a true reconciliation without worrying if they are being taken advantage of. Similar to a pre-nuptial agreement, there are very specific restrictions, on how a post-nuptial must be created for it to be enforceable in Massachusetts.

As delineated by a recent Massachusetts Supreme Court case, there are even more requirements for a valid and enforceable post-nuptial agreement than there are for a pre-nuptial agreement (though many of the requirements are similar). Ansin v. Craven-Ansin, No. SJC-10548, July 16, 2010.

Links to news stories, the opinions of numerous attorneys and mediators as well as the Ansin opinion itself are all available at MaritalMediation.com. As a summary, the Ansin decision requires that a post-nuptial agreement withstand the following scrutiny to be upheld:

  • Both parties must have had the "opportunity for counsel of own choosing."
  • The agreement must be in writing.
  • The agreement must be made with clear knowledge of the specific marital rights being waived.
  • There must not be any fraud or coercion.
  • The agreement must be fair and reasonable in view of M.G.L. c. 208 s 34 and not so different from a division under that statute as to be unreasonable.
  • The agreement must be fair with respect to the impact it will have on the children of the marriage.
  • The agreement must be fair with respect to the impact it will have on any third parties.
  • The parties must have disclosed in writing a statement of assets with approximate values.
  • The parties must have disclosed in writing a statement of their approximate income.
  • The parties must have disclosed in writing a statement of any reasonably expected income changes in the "near future".
  • The commitment to reconciliation must not be falsely misleading.

In order to ensure that you comply with these requirements, each party to a post-nuptial agreement should consult with their own counsel and review this list (as well as the Ansin decision).

Thank you to Fern Frolin of Grindle, Robinson, GoodHue & Frolin for bringing this latest news to our attention in her presentation at the MCFM Family Mediation Institute on November, 22, 2010.

Friday, December 3, 2010

Alimony Reform: Stay Tuned!

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.

As previously reported on this Blog, there is an ongoing (and at times heated) debate in Massachusetts right now over how to amend the alimony statute. Despite how long this debate has been going on, it appears that we may finally be closer to some changes.

The Legislative Task Force appointed by Newton Senator, Cynthia Creem, is reportedly close to a recommendation which could have the backing of Judges, attorneys and at least some of the reformists. Although the final Bill is not complete yet, it will likely be filed prior to the deadline for this session, January 21, 2011, and include provisions relating to guidelines and duration as recomended by the Joint Task Force Report. It is also likely that the new Bill will address issues raised by the recent Pierce decision as to how alimony should be affected by retirement.

We'll have to wait until the Bill is filed to report on the actual specifics, but stay tuned!

Wednesday, December 1, 2010

Are Gifts from my Family considered Income by the Family Court?

The following is a joint Blog Post prepared by Justin Kelsey, Esq. of Kelsey & Trask, P.C. (co-author of Scaling the Summit: A Family Law Blog) and Danielle G. Van Ess, Esq. of DGVE law, LLC (author of the Massachusetts, Wills, Trusts, and Estates blog).

The Judges in the Probate & Family Court have a lot of discretion to decide what constitutes income when the Court is considering child support or alimony.

According to M.G.L. c. 208 s. 34, the court can consider "amount and sources of income... and the opportunity of each for future acquisition of capital assets and income" when dividing property or awarding alimony. This language obviously leaves a lot of leeway for the court to consider all "sources of income" including potential "future" income.

Similarly, the Massachusetts Child Support Guidelines indicate that the court can consider "gross income from whatever source regardless of whether that income is recognized by the Internal Revenue Code or reported to the Internal Revenue Service or state Department of Revenue or other taxing authority." The specific list of possible income ends with "any other form of income or compensation not specifically itemized above." Just like with alimony, this broad language provides the Court with discretion to include family gifts as income, especially if the gifts are regular. For example, this could include the right to withdraw funds from an Irrevocable Life Insurance Trust (ILIT) established by parents to reduce estate tax liability and made available to their children as evidenced by regular Crummey notice letters.

The MA Appeals Court recently confirmed this in an unpublished decision holding that a Judge did not abuse his discretion by attributing income to a father based on family gifts, and using that attributed income to calculate child support. DiMambro v. DiMambro (Lawyers Weekly No. 82-281-10) (3 pages) (Appeals Court – Unpublished) (No. 09-P-1387) (Nov. 9, 2010).

“Future income” under the alimony statute, or “attributable income” under the child support guidelines may also include cash gifts such as annual gifts according to the gift tax exclusion amount, which is presently $13,000 per year per individual or $26,000 per year for a married couple to another person.

As the courts may consider all sources of income, particularly where one’s adult child is separated or divorcing it may be best to leave real property (such as a home or vacation home), gifts, and inheritances to one’s adult children in protected trusts rather than outright to attempt to ensure that those gifts will be preserved for one’s child and any grandchildren and not be subject to claims of the child’s ex-spouse. Parents of adult children should also be very cautious about putting their adult child’s name on their real property or bank accounts for purposes of convenience and assistance with management as those assets may become assets of the child as well and subject to claims in bankruptcy or divorce.

Given the Judge's broad discretion in this area, families should discuss gifts and the impact of those gifts with their attorneys to ensure they understand all the relevantthose gifts might have.

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