WE HELP FAMILIES RESOLVE CONFLICT PEACEFULLY


Friday, May 27, 2011

Update on the Alimony Reform Act of 2011: The Winds of Change

On May 18, 2011, a public hearing took place at the Massachusetts State House before the Joint Committee on the Judiciary. The bills that garnered the most attention involved human trafficking, redefining joint custody, and the Massachusetts Alimony Reform Act of 2011 (S0665). While efforts to reform alimony in Massachusetts have fallen short in the past, the atmosphere was one similar to watching an athlete jog a victory lap.

In a forum designed to encourage debate and dissenting opinions, there was no notable opposition to the bill, as the Joint Task Force established by the Judiciary Committee seems to have crafted a bill that expected to pass this session. Steve Hitner, the co-founder of the Mass Alimony Reform group, received a standing ovation and a round of applause just prior to testifying. Usually, such welcomes operate against the rules of decorum, but Committee co-chairs Eugene O'Flaherty (D-Chelsea) and Cynthia Stone Creem (D-Newton) allowed it, recognizing the efforts of Hitner and other members of the Task Force in reaching a realistic middle ground.

We at Kelsey & Trask have already voiced our support for the proposed bill, and if it indeeds becomes the law in Massachusetts, we will continue to advocate for our clients under the new law.

If you're interested in seeing a summary of the bill's changes and viewing a calculator for the proposed formulas visit MassAlimonyFormula.com.

You can view the full video of the Joint Committee hearing here.

Wednesday, May 18, 2011

Como divorciar-se quando não falo inglês ?

Mesmo que não fale inglês, o probate & family courts de Massachusetts tem sido acessível a todos. Se você não fala inglês suficiente e tem dificuldade de entender o juiz, ou preencher algum formulário, a court apontara um interprete para estar presente em qualquer audiência Pela Secretaria de Serviço de Interprete.

Lembrando que, se sua língua nativa e português ou espanhol (como representa 86% que não falam inglês das pessoas na court de Massachusetts), a court tem liberado formulário e declaração com instrução nas línguas citadas,que poderão ser acessadas para download aqui.

Versão Inglês / English Version
Versão em Espanhol / Spanish Version

How do I get Divorced if I don't speak English?

Even if you don't speak English, the Probate & Family Courts in Massachusetts have made an effort to be accessible to all. If you do not speak English well enough to be comfortable understanding a Judge at a court hearing or to complete the forms, notify the court staff and they can arrange for an Interpreter to be present at any court hearing through the Office of Interpreter Services.

In addition, if your native language is Spanish or Portuguese (which represents 86 percent of the non-english speaking litigants in Massachusetts), the Court has released a short form Financial Statement and Instructions in each of those languages, available for download here.

Unless the irony of this blog title is lost on you, you're probably wondering how someone is supposed to read this who doesn't speak English. For that reason, we are re-posting this Blog in both a:

Spanish Version / Versión española
Portuguese Version / Versão Português

(with special thanks to the friends of our firm who translated this post for us)

¿Cómo me divorcio si no hablo Inglés?

Incluso si usted no habla Inglés, la Tutela y los tribunales de familia en Massachusetts han hecho un esfuerzo para ser accesible a todos. Si usted no habla Inglés lo suficientemente bien como para entender cómodo un juez en una audiencia en la corte o para completar los formularios, notificar al personal del tribunal y hacer arreglos para un intérprete de estar presente en cualquier audiencia de la corte a través de la Oficina de Servicios de Intérprete.

Además, si su lengua materna es el español o portugués (que representa el 86 por ciento de los litigantes que no hablan lnglés en Massachusetts), el Tribunal ha publicado un breve formulario de Estados Financieros e instrucciones en cada uno de esos idiomas, disponible para su descarga aquí.

Versión Inglés / English Version
Versión en Portugués / Portuguese Version

Tuesday, May 17, 2011

The Perfect Divorce: Does it Exist?

NO.

That was easy, next blog post... No, you want more than that? Okay:

Divorce is by definition about the failure of a plan. You got married, you took vows, and it didn't work out. Whether or not you are about assigning blame (and there is usually enough to go around), divorce is about picking up the pieces of a failure. Accepting that disappointment is as important a step in moving on as accepting that the marriage was over in the first place.

If you take that failure personally, you should discuss those feelings with friends, family or a professional therapist. You shouldn't ignore them because you need to find a way to move past them in order to deal with the practical realities of dividing up a marital life.

With respect to finances, divorce means dividing up a business partnership, and there is no perfect or ideal way to do this. In Massachusetts, the court can consider numerous factors in how to do this (M.G.L. c. 208 s34), but in practice most cases settle, and they settle based on what both parties can live with. You won't get everything you want, but neither will the other side.

With respect to children, even if you do the best you can parenting apart is never ideal. In many situations and for many relationships it may be better than parenting together, but even the best parents can't undue the loss a child feels when their parents break up. I was reminded of this when reading a simple quote from an interview with Jack Black in the Guardian, in which he matter-of-factly indicates that his parents divorced and as a kid the simple fact "that they can't live with each other makes you feel there's something wrong with you." In many ways parenting is about doing your best with what you have anyway, and no where is this more true than in parenting apart. You can educate yourself and make the best of it, and minimize the trauma on your children. But to do that you have to first accept that this situation is not perfect, and find ways to compensate.

At the end of the day, realizing that there is no perfect divorce is an important step in figuring out how to look at the future rather than dwell on the failures of the past. Sometimes the cliché is true: whatever doesn't kill you makes you stronger.

Monday, May 16, 2011

Alimony Reform Update: Committee Hearing on Wednesday 5/18

The Alimony Reform Act of 2011 has had a lot of buzz in the past few months. Since it's filing, over 130 legislators have signed on as Petitioners and many family law practitioners have expressed their support for the bill.

Despite some reservations we at Kelsey & Trask, P.C. have about the bill, we believe that it is a significant improvement over the current alimony law in Massachusetts. In addition, we recognize that some of the provisions that we think could be improved (such as the child support integration) were the result of significant compromise from all of the interested parties (lawyers, judges, citizens and advocates).

Therefore, we at Kelsey & Trask, P.C. support the efforts of Bill Sponsor Gale Candaras and the numerous petitioners to have this bill entered into law as soon as possible.

If you agree, voice your opinion to your state legislators. The Joint Committee on the Judiciary is holding a hearing this Wednesday, May 18, 2011 at 1:00 P.M. in the Gardner Auditorium.

If you're interested in seeing a summary of the bill's changes and viewing a calculator for the proposed formulas visit MassAlimonyFormula.com.

Tuesday, May 10, 2011

Should I Rent or Buy a new Home?

To Rent or Buy? That is the question. Trulia.com shows us, with some neat graphics, that the answer depends on where you live. If you're in Phoenix of Jacksonville: Buy, Buy, Buy. But not so fast in New York City or Boston.

No matter where you live, one of the most expensive parts of a divorce is changing your lifestyle from supporting one household on your current incomes to supporting two households. Whether or not the current home is sold or one person stays there, in the end both parties are faced with the question: is it better to buy or rent?

Traditional thinking is that it is better to buy. It is the American Dream to own your own home, and the government assists you by offering a mortgage interest deduction on your income taxes. But as Trulia.com's graphics demonstrate, that may not be enough in todays market.

Let's use Natick, Massachusetts to test an example:

The average rent for a 2BR home or apartment in Natick in 2010 was $1400. The cost of living in such a home for two years would be $33,600 not counting tenant's insurance. Let's estimate tenant's insurance at approximately $150 per year which results in the total two-year cost of renting as $33,900.

The average home price for a 2BR home in Natick in 2010 was $286,000. If you buy a home today at $286,000 and put down 10% ($28,600) you would need a mortgage of $228,800. At current rates (4.468%) and for a 30 year fixed mortgage just the mortgage payment would be $1,039 per month. The property taxes on that home would be approximately $3,603.60 per year, and homeowner's insurance would be approximately $1000 per year. Adding the cost of the mortgage, homeowner's insurance and taxes together the monthly cost of buying the home is $1,422.63 per month, which results in the total two-year cost of buying as $34,143.

For a 2BR in Natick, the figures for renting and buying are pretty close and if we take into account the mortgage interest income tax deduction for buying, buying would seem to be the way to go (if you have an effective tax rate of 15% then you could save approximately $1,370 in taxes in the first year). In this example by buying a home instead of renting you'll save approximately $2,500 over the first two years.

But wait, there's a catch!

Remember that $28,600 you tied up in the equity in your home as a down payment? Risking that down payment on the housing market, is ultimately the cost that you paid for saving $2,500 over two years. And the reason that traditional thinking says that it is better to buy is because traditionally the value of real estate over time goes up.

To keep using Natick as an example, the value of the average 2BR from 2001 to 2011 went from $226,000 to $280,400. So if you bought a home in 2001, it looks like you made a good investment. But what if you bought in 2005. The average 2BR in Natick was $333,000 in 2005. If you only put 10% down and bought in 2005 you are now well underwater on your mortgage. And according to Boston.com the trend is continuing: Sinking prices put more homeowners underwater.

Essentially, this means that you must ask yourself How long do you want to stay in your new home? If you may want to move in 2 years, you will have saved slightly on your monthly cost by buying (due to the tax benefits), but if your house is worth less you may have lost your down payment. And this is assuming you can even sell your home as quickly as you want. Renting offers mobility without having to wait for a buyer to come along, and without risking your liquidity.

Of course, if the housing market turns around or you plan on staying in your new home for a much longer time then you may still benefit from buying. Essentially you are guessing whether today is more like 2001 or 2005? Well... do you feel lucky?

To compare these figures for your town or city, check out Zillow.com for home price averages and mortgage rates, and ApartmentRatings.com for rental market trends.

Monday, May 9, 2011

If I leave the House, will I lose my Financial Interest?

In many divorce cases, the initial fight is over who will leave the house. In cases where the parties own the home, the first person to leave is often very concerned that the spouse remaining behind will have a financial advantage. While there are some potential financial advantages to the party that remains behind, in most cases they are minimal when compared to the quality of life improvement one experiences by leaving a stressful living situation.

The potential financial advantage is primarily the use of the house during the pendency of the divorce action, which may have some financial benefit depending on how the bills of the house are split during the separation. There is also the immediate expenses for moving and replacing any furniture or other necessities, but unless one party buys the other out from the house both will eventually have this cost.

There are potential problems with one party controlling the property, for instance they can make it more difficult to show to potential buyers or fail to perform necessary repairs and upkeep. If you believe these are a serious risk, you may want to agree to orders on these issues before leaving the house. A solid written agreement can prevent most of the financial problems that might arise by leaving the home before the divorce is final, or at least provide for mechanisms to compensate one party if there are issues. If you are unsure of what you should do in your situation, you should consult with an attorney to discuss the specifics of your case.

Sunday, May 8, 2011

If I leave the House, will I lose my Kids?

The most common reason for divorcing spouses to continue living in the same house is because neither wants to leave their children behind. When a parent leaves the home and moves to another location without an agreement for parenting plan in place, they are essentially ceding physical custody to the other parent. Physical custody is simply defined as who the children reside with and unless there is a plan in place, if only one parent lives in the children's home, then that parent necessarily has physical custody (it is possible for a parent to move out with the children, but this is unusual except in cases of abuse).

While many parents will fight over who can remain in the home during this time period, this argument is a distraction from the reality that eventually divorcing spouses will live separate and apart. It makes more sense for the spouse who will eventually move to begin investigating their other options as soon as possible, and for parents to work out a realistic parenting plan prior to that move. Rather than use this argument as a ploy to fight over the children, discussing practical resolutions will focus both parents on how much time each will spend with their child instead of focusing on what they are losing. Divorce will never leave each person whole, but to the greatest extent possible parents should strive to keep their children from getting caught in the middle of any disputes.

Friday, May 6, 2011

A Trend in Diamonds?... Have you considered a Prenup?

According to a recent post by a jeweler that specializes in diamond rings, Brown Diamond Rings may be the next big trend. Upon hearing this, I was immediately reminded of a scene from one of my favorite movies, Beautiful Girls, in which a guy tries to explain to his friends the brown diamond ring he bought for a girl who just broke up with him:

  • Kev: It's a trend in diamonds. Champagne. It's a nice stone.
  • Willie: Yeah, no, I heard about this. It's a new trend in the diamond trade, they're trying to create a new market.
  • Tommy: Oh, right, right. yeah. They were callin' 'em "piss", but they weren't moving any units. What's with you, man?
  • Paul: What?
  • Tommy: Well, how much you pay for this brown rock?
  • Paul: What difference does it make?
  • Tommy: Diamonds are supposed to be colorless! You go out and buy a colored diamond for a girl you're not even seeing, man, you must be eating retard sandwiches again.

So, if you're considering following the trend, and buying a brown diamond engagement ring, we wish you the best of luck. But maybe you should also check out some information on Prenuptial Agreements.

Just like a brown diamond, a prenuptial may not be traditional or romantic. But at least a prenuptial agreement can help both you and your future spouse ensure that you are clear and up front about your plans for separate and joint finances. Even if you don't sign a prenuptial agreement, the success of your marriage may be dependent on your willingness to be open and honest with each other about finances. If you have certain expectations about how you will share finances it is a good idea to have those discussions prior to getting married. As part of preparing a Prenuptial Agreement one of the requirements is full financial disclosure.

Communication is the key to any good relationship. So, if you don't want him to buy you a brown rock, make sure you communicate.

Thursday, May 5, 2011

Can I go to Jail for not paying Child Support?

Under M.G.L. c. 215 s 34, a Judge can incarcerate a Defendant who has failed to pay under a Court Order that was clear and unambiguous, so long as the Defendant had the ability to pay. Many Contempt Complaints in the past few years for issues of non-payment have been due to the down-turn in the economy. The key issue in many of those cases is whether or not the Defendant had the ability to pay.

It can be difficult, though, for the Court to distinguish between a party who is a victim of circumstance and truly unable to pay, and the lazy or vindictive ex who is just not trying to pay their fair share. In 2009, Judges in Massachusetts incarcerated 848 defendants for Contempt. In 2010, the number dropped to 622. That drop may be due to a perception that the economy is affecting more Defendants, but it's difficult to know for sure.

Regardless, you don't want to be among those counted in 2011 (nor do we want any of our clients to add to that number). In these cases the credibility of the Defendant is very important as is any evidence they can present to show a legitimate reason that they were unable to pay. In addition, if the Order is still in effect, the Defendant should likely file a Complaint for Modification to ask the Court to make a change so they will not continue to be in Contempt going forward. If you are not sure about how to proceed on this type of matter, we strongly recommend consulting with an attorney before it's too late.

Wednesday, May 4, 2011

Can DCF records be used in my Custody Case?

The Court can use any credible evidence, that conforms with the rules of evidence, in making determinations about custody. The Court often has to weigh the source of the evidence as well as the content of the evidence presented. This is the same for DCF records, although there are limitations on how this information is obtained by the Court.

In a recent case, the Supreme Judicial Court of Massachusetts, reviewed and stayed certain informal procedures that were being used in the Hampden Division of the Probate and Family Court to access the confidential information contained in Department of Children and Families records. Brantley v. Hampden Division of the Probate and Family Court Department, Mass SJC-10343 (2010).

When DCF gets involved with a family it is usually an indicator that there is some danger of neglect or abuse to the children. Naturally this information could be useful for Probate and Family Court Judges to be aware of in making determinations. However, there are limitations to how DCF can share this information because of it's sensitive nature, and there are also very significant due process concerns about this information including how much hearsay it might contain and the lack of opportunity for litigants to respond to allegations. These concerns were discussed at length by the Massachusetts Supreme Court and based on those concerns, the Court ordered the Hampden division to stop using these informal procedures to talk to DCF.

The Court also urged the Chief Justice of the Probate and Family Court to create a standing order on this issue. A draft Standing Order is pending which provides procedures for the Court to follow when requesting information from DCF (formerly DSS), but no final order has been issued yet.

Until there is further guidance on this matter, if you want the Court to be aware of DCF actions in your custody matter, then you must file a Motion to Release with the Probate & Family Court and Subpeona the records from DCF. DCF will not release the records until the Judge rules on the Motion to Release. If you need help completing these forms you should consult with an attorney.

Monday, May 2, 2011

Does Bad Conduct matter in a Divorce case?

M.G.L. 208 s 34 provides a list of factors for the court to consider in dividing marital property and/or assigning alimony awards. One of these factors is "the conduct of the parties during the marriage." Quite often this is the factor that clients want to talk about the most, but is the least important factor to the court. Although adultery and other offensive behavior may have led to the divorce, the Judges are used to seeing this behavior in so many cases that they become jaded to it and prefer to focus on the financial factors most of the time.

This means that bad conduct which affects the finances (such as spending money on an extra-marital affair or gambling) will be taken into account, but often bad conduct which does not affect the finances will not. However, this does not mean that non-financial bad conduct has no effect at all, and sometimes if it is egregious enough the court may consider its effect on the marriage itself.

Especially if the conduct is significant as in the case of Wolcott v. Wolcott. In that case, the court awarded the Husband approximately 90% of the martial estate, primarily due to the Wife's extremely bad conduct. Because of attempts that the Wife made to find someone in the "mafia" to make her husband "disappear", a jury convicted the wife of solicitation to commit murder, and she served three months in the house of correction before being released on parole.

Although this is obviously an extreme example, the Court indicated that consideration of much less egregious conduct under § 34 has been approved. The Court further indicated that conduct could be considered which harmed the martial estate OR the marriage itself.

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