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Showing posts from 2013

Is Litigation Worth It?

In a recent appeal over the payment of college education expenses by divorced parents for a minor child, the Massachusetts Appeals Court in Cooper v. Keto  had to evaluate complicated choice of laws rules and Contempt standards for a contempt case that involved a California decree.  Unless you're excited by jurisdiction and choice-of-law disputes, the majority of this case is not noteworthy.  However, what really stood out in this decision had little to do with the substance, and more to do with the cost of this litigation. The lower court awarded the Mother $90,263.25 in attorney's fees and the trial court upheld that award.  Even worse, the court notes that the Father's fees added up to approximately $250,000. Concurring in the majority opinion, Justice Brown provided some enlightening commentary on these fees: "Here, we again witness another puzzling situation in which the legal fees paid and awarded far exceed any amount that would be gained. Indeed, the fath

What is the Purpose of Section 3 on the New Child Support Guidelines Worksheet?

Asking why Section 3 is on the new child support guidelines worksheet is like asking why bad things happen to good people.  Everyone has a different theory and none of them are really satisfying. The 2009 Child Support Guidelines Worksheet had two sections which broke the worksheet down into an Income Section and a Calculation Section, with a resulting recommended child support amount.  The new 2013 Child Support Guidelines worksheet changes these two sections and the calculations, which he have discussed previously . In addition, the 2013 guidelines added a new section, Section 3 titled: AVAILABLE INCOME ABOVE $4,808 (If applicable.) In cases where the combined household income is less than $4,808 per week ($250,000 per year), Section 3 will show all zeros.  However, if the family income exceeds this figure, Section 3 displays the proportional amount that each party has left-over in gross income after using the first $4808 per week in combined income to calculate the minim

Is it Easier to Remove a Child of Unmarried Parents from the Commonwealth?

This past summer we posted a full blog series on issues facing Unmarried Parents in Massachusetts .  While many issues that unmarried parents face may be different than those faced by married parents, most of the issues will be the same.  Parenting a child still comes with may of the same worries, financial obligations, affections, and lessons, regardless of the parents' relationship with each other.  However, when legal realities collide with economic or practical realities, there may be significant differences in how unmarried parents are treated. Removal cases are one example of this disparity in Massachusetts.  Removal is a legal term of art for the simple concept of when one parent wants to move their residence out of state and take their child with them.  In Massachusetts, M.G.L. c. 208 Section 30 covers the removal of minor children in a divorce case, and prohibits removal without consent of both parents or order of the court.  We explore in what circumstances the court

How often do Collaborative Divorces Succeed?

One of the downsides of Collaborative Law, as with any alternative dispute resolution process, is that if you do not settle your case outside of court, there is still the risk that you will end up in court litigating your dispute.  Many people still choose to give amicable settlement a fair chance, but a common question when trying to make this choice is "how often do these cases succeed in settling outside of court?"  While every case is different and will present unique issues, there is now some available data to answer this question. The International Academy of Collaborative Professionals (IACP) has collected data on Collaborative cases from the professionals involved in those cases through the use of an IACP Professional Practice Survey and reported some of their findings in The Collaborative Review  Spring 2012 issue. Based on a a total of nine hundred and thirty–three cases, which were reported from October 16, 2006 through July 6, 2010, they found that:  "

Are Complaints for Contempt getting Harder to Win?

A Complaint for Contempt is the action by which you can request that the Court make a finding and issue sanctions for failure of one party to meet the obligations and requirements of a Court Order or Judgment.  Sanctions can include civil fines, payment of attorney's fees and costs, modification to existing orders or judgments, or in some cases incarceration. To succeed on a Complaint for Contempt you must prove two things: first, you must prove that there has been a "clear and unambiguous" order or judgment and second, you must prove that the other party "knowingly violated" the order. If the Contempt involves a financial order, depending on the remedy you are seeking, the US Supreme Court case of Turner v. Rogers  may also now require that you prove an "ability to pay."  Traditionally in Massachusetts the Court's have allowed "inability to pay" an order as a defense to certain enforcement attempts (such as incarceration).  This w

The New Child Support Guidelines on your Phone

On August 1, 2013, the new Massachusetts Child Support Guidelines took effect.  The new guidelines contain numerous language changes which affect the interplay of child support and other issues in a divorce or paternity case; touching on everything from shared parenting to college education costs. In addition, the child support formula and the worksheet for the 2013 guidelines is significantly different than then 2009 guidelines.  The court has issued a new worksheet which is required if you are filing any matter in the Probate & Family Court that involves support of children.  To assist you in completing this form  Kelsey & Trask. P.C. and Finn & Eaton, P.C.  have created the following user-friendly apps: Massachusetts Child Support Calculator for the iPhone by Kelsey & Trask, P.C. MA Child Support Calculator for Android by Finn & Eaton, P.C. Massachusetts Divorce Information for Windows Phone by Kelsey & Trask, P.C.

When is a Marriage not a Marriage?

A disturbing item of recent news is the proliferation of positive pregnancy tests for sale on craigslist and similar sites.  Aside from the grossness factor of buying a stick someone urinated on, this practice raises some obvious and some not-so-obvious concerning scenarios.  Are the potential purchasers of these positive tests looking to commit a prank, or actually trying to convince someone that they are pregnant? If such a test was used to obtain a marriage proposal are their legal ramifications to that fraud?  Fraud can carry criminal sanctions if the intent was to extort money or sex from someone, and can also result in actionable civil damages.  Taken one step further, if the fraud resulted in a marriage, would that marriage be legal? While there are ways in which a marriage can be void, fraud does not automatically void a marriage.  However, since marriage is a contract it can be voidable.  In other words a marriage can be annulled if the contract was entered into upon th

Summer Lovin' Series: How do I get a paternity test?

Summer is finally here.  The air is humid, the sunblock is out, and it's finally time for vacations and school break.  But enjoying summer too much has its consequences.  Our  Summer Lovin'  series is about those consequences for Unmarried Parents in Massachusetts: Summer Lovin' Series #10: How do I get a paternity test? If the presumed father denies that he is the father of a child born to an unmarried mother, then DOR can perform a DNA parentage test if the mother requests DOR services.  If the mother or DOR has filed a complaint seeking child support from the father, and the father disputes paternity, then the father can file a Motion requesting that the court order a DNA test. This usually takes 6-8 weeks, and can be required by the court if the presumed father or the mother refuses to participate. You can also obtain a private test which is usually faster but will likely cost approximately $600. For more information visit our webpage devoted specifically to

Summer Lovin' Series: What happens if one parent wants full custody of a child born out of wedlock?

Summer is finally here.  The air is humid, the sunblock is out, and it's finally time for vacations and school break.  But enjoying summer too much has its consequences.  Our  Summer Lovin'  series is about those consequences for Unmarried Parents in Massachusetts: Summer Lovin' Series #9: What happens if I want full custody of a child born out of wedlock? Unmarried mothers in Massachusetts are presumed to be the sole legal and physical custodian of a child without going to court.  If the father requests it, the court can order that either party have sole legal or physical custody or that the parties share legal or physical custody depending on your specific circumstances. However, "full custody" is somewhat of a myth, because unless the other parent is unfit they will still be involved in the child's life to some extent. While sole legal custody allows one parent to make major decisions, sole physical custody does not mean the child is always with o

Summer Lovin' Series:The DOR is requesting past child support. Can they do that?

Summer is finally here.  The air is humid, the sunblock is out, and it's finally time for vacations and school break.  But enjoying summer too much has its consequences.  Our  Summer Lovin'  series is about those consequences for Unmarried Parents in Massachusetts: Summer Lovin' Series #8: The DOR is requesting past child support.  Can they do that? In a Divorce case, a custodial parent cannot receive any child support for time prior to the filing and service of the Complaint. This is because there is a presumption that the parents lived together and shared income until the case was filed. In a Paternity case there is no such presumption and DOR or a custodial parent can request child support arrears dating all the way back to the birth of the child. There are a number of factors that the Court can consider in determining the amount of and the appropriateness of a child support arrearage and you should consult with an attorney to discuss these factors, especially sinc

Summer Lovin' Series: How much Child Support can DOR collect?

Summer is finally here.  The air is humid, the sunblock is out, and it's finally time for vacations and school break.  But enjoying summer too much has its consequences.  Our  Summer Lovin'  series is about those consequences for Unmarried Parents in Massachusetts: Summer Lovin' Series #7: How much Child Support can DOR collect? Child Support is calculated using a formula called the Massachusetts Child Support Guidelines. The formula is presumptive, and Judges can only vary from the formula in specific circumstances. You should consult an attorney to discuss what facts in your case might warrant a variation from the formula. To view the formula and calculate your Child Support view our Massachusetts Child Support Guidelines Calculator. Kelsey & Trask, P.C. is now offering flat fee representation at DOR support hearings for a flat fee of $750 in most cases.  For teen parents under the age of 18, Kelsey & Trask, P.C. offers free representation for DOR suppor

Summer Lovin' Series: How long can DOR collect child support for?

Summer is finally here.  The air is humid, the sunblock is out, and it's finally time for vacations and school break.  But enjoying summer too much has its consequences.  Our  Summer Lovin'  series is about those consequences for Unmarried Parents in Massachusetts: Summer Lovin' Series #6: How long can DOR collect child support for? In Massachusetts, child support can continue until the child is twenty-three (23). Except for the absolute maximum of age twenty-three (23), child support does not end upon a specific age but rather when the child becomes "emancipated." Emancipation in Massachusetts is defined in M.G.L. ch. 208 s. 28 . In basic terms child support in Massachusetts stops when the child turns age: 18, unless the child is still principally dependent on the custodial parent (i.e. the child is no longer principally dependent if they've moved out of the home, except for college, is employed full time, is married, of has joined the military);

Summer Lovin' Series: Why is the DOR taking me to Court for Child Support?

Summer is finally here.  The air is humid, the sunblock is out, and it's finally time for vacations and school break.  But enjoying summer too much has its consequences.  Our  Summer Lovin'  series is about those consequences for Unmarried Parents in Massachusetts: Summer Lovin' Series #5: Why is the DOR taking me to Court for Child Support? The Department of Revenue (DOR) files child support complaints on behalf of parents when they request it or when they receive services from the Department of Transitional Assistance. DOR hearings typically result in child support judgments, which can last as long as 23 years.  It's important to have representation at this hearing so that the agreements or judgments that are reached are fair to both the parents and the child. DOR Hearings do not typically include custody and parenting plan negotiations.  Usually a separate Complaint is required to resolve parenting and custody issues, though sometimes they can be settled at a

Summer Lovin' Series: How do Unmarried Parents pay for their Child's Expenses?

Summer is finally here.  The air is humid, the sunblock is out, and it's finally time for vacations and school break.  But enjoying summer too much has its consequences.  Our  Summer Lovin'  series is about those consequences for Unmarried Parents in Massachusetts: Summer Lovin' Series #4: How do Unmarried Parents pay for their Child's Expenses? There are many expenses involved in raising a child, starting with the costs of pregnancy and continuing all the way through college.  When unmarried parents can't agree on how they will divide their child's expenses, then the court can make certain orders regarding support. The court can order parents to pay child support, extracurricular activities, health insurance, uninsured medical costs, birthing and pregnancy costs, and even education and college expenses. Child Support is typically paid by the non-custodial parent to the custodial parent for the support of the child. To obtain a court order for child su

Summer Lovin' Series: How do Unmarried Parents work out Custody and a Parenting Plan?

Summer is finally here.  The air is humid, the sunblock is out, and it's finally time for vacations and school break.  But enjoying summer too much has its consequences.  Our  Summer Lovin'  series is about those consequences for Unmarried Parents in Massachusetts: Summer Lovin' Series #3: How do Unmarried Parents work out Custody and a Parenting Plan? Children of unmarried parents are by default in the custody of their mother. Parents can agree to share custody or arrange for visitation through collaborative negotiation or mediation when appropriate. If they can't agree then the court can create a parenting plan with the filing of a Complaint for Custody and Visitation. 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. It can include a holiday visitation schedule, pick-up a

Summer Lovin' Series: Who fills out the Birth Certificate when parents are not married?

Summer is finally here.  The air is humid, the sunblock is out, and it's finally time for vacations and school break.  But enjoying summer too much has its consequences.  Our  Summer Lovin'  series is about those consequences for Unmarried Parents in Massachusetts: Summer Lovin' Series #2: Who fills out the Birth Certificate when parents are not married? The Birth Certificate is completed with information provided by the mother of the baby.  If she is unmarried, then she can request the father's name be included.  In order to include the father's name he must sign a Voluntary Acknowledgment of Paternity and then his name will appear on the birth certificate. Signing a Voluntary Acknowledgement has significant legal ramifications.  Even if a father is not the biological father, signing the Voluntary Acknowledgement could make him the legal father, with both the rights and obligations of being the father.  (see this previous related post: Could I be Forced to

All Your Children under the New Child Support Guidelines

The Duggar Family (from  examiner.com ) The Massachusetts Child Support Guidelines recognize that families with multiple children have increased expenses (although those expenses are not simply doubled with each additional child). The 2009 guidelines included a multiplier for each additional child (up to 5, sorry Duggars).  This multiplier directly increases the amount of child support owed by a specific percentage.  In the 2013 guidelines these percentages were increased, though due to the reduction in the base rates for support the impact on prior orders may simply cancel each other out. The increase in rates is shown below: Obviously from the chart there is not a suggested multiplier for families like the Duggars or Octomom, but the guidelines do at least address these situations by setting a minimum presumption: "The guidelines formula applies to families with 1-5 children. For more than five children, the order should be at least the amount ordered for five chi

SCOTUS avoids 14th Amendment analysis on Prop 8 through Standing Analysis, Still a Win?

In the second of a pair of same-sex marriage rights cases, the Supreme Court of the United States refused to deal with the substantive issue declaring a lack of standing instead.  In deciding the case on standing the Court avoided addressing the constitutionality of denying same-sex couples the right to marry.  However, in deciding the issue on standing the majority decision can be read to condone the actions of the public officials who refused to defend Prop 8. Known as the Prop 8 case (a/k/a Prop H8), everything you need to know about Hollingsworth v. Perry is summarized below: Prior to reaching SCOTUS here is what happened: California Supreme Court follow Massachusetts in declaring denial of same-sex marriages in violation of the California Constitution. California voters then pass Proposition 8, amending the California Constitution to define marriage for opposite sex couples only. Same-sex couples sued California's governor and state and local officials claiming Pro

DOMA No More, SCOTUS finds Section 3 Unconstitutional

In the first of a pair of same-sex marriage rights cases decided today, the Supreme Court of the United States declared portions of DOMA (the so-called "Defense of Marriage Act") unconstitutional.  Although there were some concerns about jurisdiction in this case due to the executive branches failure to defend DOMA vigorously the court determined there was jurisdiction and that DOMA is unconstitutional under the equal liberty of persons protected by the Fifth Amendment. Known as the DOMA case, everything you need to know about United States v. Windsor  is summarized below: Prior to reaching SCOTUS here is what happened: Edith Windsor and Thea Spyer, two women, met in New York City in 1963 and began a long-term relationship. Windsor and Spyer registered as domestic partners when New York City gave that right to same-sex couples in 1993. In 2007, Edith Windsor and Thea Spyer, then residents of New York, were married in Ontorio Canada. Under the laws of the State o

Changes in the Law reflected in the New Massachusetts Child Support Guidelines

Between 2009 and 2013 a lot has changed.  In 2009 Kanye West was the only one who couldn't wait for Taylor Swift to finish her speech and in 2013 ain't nobody got time for that.  We went from not knowing who Susan Boyle was to again not knowing who Susan Boyle is.  And your Three Wolf Moon T-shirt is probably getting a little worse for wear. Believe it or not, Massachusetts family laws relating to support between 2009 and 2013 have seen some significant changes as well.  With the new child support guidelines, released on June 20, 2013 and taking effect on August 1, 2013, the Chief Justice and the Child Support Task Force had the opportunity to reflect these changes in the new guidelines. More specifically, the guidelines reference both the Alimony Reform Act of 2011 and the recent decision in Morales v. Morales .  Since we have discussed both of these changes in previous posts (links above) we will only address here how the new guidelines reference these changes: The Ali

The Increased Impact of Shared Parenting under the New Child Support Guidelines

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." Prior to this addition there was significant deviation in how different Judges handled the question of child support in shared parenting arrangements, ranging from no child support to standard child support guidelines, both extremes of which fail to recognize the financial impact of shared parenting. However, the 2009

High Income Households under the New Massachusetts Child Support Guidelines

The new Massachusetts Child Support Guidelines effective on August 1, 2013 provide more specificity for the court on how to calculate child support when the combined household income exceeds $250,000. Under the new guidelines, the Court is still given significant discretion as to child support orders in these households but the language of the new guidelines clarifies a few key issues that had previously led to confusion over the court's presumptions and authority in these cases. Under the old guidelines, the language read: These guidelines are not meant to apply where the combined annual gross income of the parties exceeds $250,000. In cases where income exceeds this limit, the Court should consider the award of support at the $250,000 level as the minimum presumptive order. Additional amounts of child support may be awarded in the Court’s discretion. Under the new guidelines, this section reads: These guidelines are calculated up to a maximum combined available annual

New Massachusetts Child Support Guidelines will Reduce Support for Many

On Thursday, June 20, 2013 Chief Justice of the Trial Court, Robert A. Mulligan, announced via Press Release the latest revisions to the Massachusetts Child Support Guidelines which will become effective on August 1, 2013.  Federal rules require that the court review the guidelines every four years, and the current guidelines were enacted in January of 2009. The Chief Justice, with the assistance of a task force he appointed in 2012, reviewed the guidelines with the hope of "producing guidelines based on the current economic climate for families raising children in Massachusetts." Since August 1 is pretty close, we at Kelsey & Trask, P.C. want to help everyone understand these new guidelines and how they affect current divorce, paternity and child support modification cases.  Over the next few days we will be posting multiple blogs regarding the changes these new child support guidelines will implement, and providing an updated user-friendly calculator to assist with

Summer Lovin' Series: Unmarried Parents with a Baby on the Way!

Summer is finally here.  The air is humid, the sunblock is out, and it's finally time for vacations and school break.  But enjoying summer too much has its consequences.  Our Summer Lovin' series is about those consequences for Unmarried Parents in Massachusetts: Summer Lovin' Series #1: Unmarried Parents with a Baby on the Way! Unmarried parents who are separated can still plan for the baby's arrival together.  This planning should include how to pay for the expenses of the pregnancy and birth, and how to pay for the expenses of the child once he or she arrives.  In addition, for parents who are living apart, they should begin to consider a reasonable parenting plan for when the baby arrives. 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. It can include a holiday visitat

Should You give your Ex-Husband a Father's Day Card?

UPDATE: There is at least one company now offering greeting cards designed specifically for ex's:  https://xcardsgreetings.com/   If you don't live in the NY/NJ area you may have to order online, but if you plan ahead you could really make an impression on your ex. Original Post: I recently wrote about the lack of any Mother's Day cards designed specifically "For My Ex-Wife."  Of course the same is true for Father's Day.   The seasonal section is now  full of cards ranging from religious to sappy to funny (or appropriately politically correct kinda-funny).  There are cards separated into sections "For My Husband", "From Daughter", "From Son", for grandfathers and even great-grandfathers. But there aren't any cards in the aisle labeled "For My Ex-Husband." Why not? One Judge in Plymouth County has a standard speech he gives divorcing spouses right before he approves their final divorce.  Judge James Menno t

What can Beer teach us about Hiring a Lawyer?

Last Friday, May 31, 2013, I attended the American Craft Beer Festival at the Seaport World Trade Center in Boston.  It included more than 140 brewers providing samples of over 600 different beers.  I would not call myself a connoisseur of beer and went primarily because of the interest of a friend.  However, when I considered how I would rate the various beers that I sampled, I discovered that some clearly stood well above the others. Before I attended ACBF, I knew that all beers were not created equal, but I would not have gone out of my way to find a particular beer.  What I learned at the ACBF, though, is that some beers are truly worth going out of your way to find.  Specifically my favorites were Lunch from the  Maine Beer Company  and Koko Brown from the  Kona Brewing Company . So now that I've whet your appetite for a good beer, let me explain why I think there is actually a lesson in my experience that can help you hire a lawyer. By now most people know that th

Can I get Divorced in Massachusetts if I was married in another country?

Assuming you are a resident of Massachusetts for 1 year, or you meet one of the other jurisdictional requirements to have your case heard in Massachusetts , the fact that your marriage was solemnized in another country will not usually make a difference. With a few exceptions (such as g oing to a foreign jurisdiction to get married when you wouldn't be considered competent in MA ), a foreign marriage is recognized as a legal marriage in MA so long as it is recognized as a legal marriage in the country of the marriage.  Under M.G.L. c. 207 s 36 you can file a foreign marriage certificate with your town clerk to have it recorded, if you want vital records to have a record of your marriage. However, that usually isn't necessary in order to file a divorce.  You just have to file an original or a certified copy of the marriage certificate with the Complaint for Divorce.  If the original or certified copy is not in English then I would also recommend having a certified transla

Can a parent visit their children if there is a restraining order protecting the other parent?

In a recent Supreme Court decision,  Moreno vs. Naranjo , SJC-11070 (2013)  , the SJC dismissed an appeal as moot for a 209A order that had expired, but addressed the underlying issue anyway in order to provide guidance to District Court judges.  In  Moreno  the District Court judge had considered the impact of the order on visitation and had ordered a 6 month order instead of 1 year because of the likely impact of the order on the relationship between the defendant and the child.  The SJC indicated that this consideration was improper. In deciding the length of an order, the only consideration should be the "time reasonably necessary to protect from abuse the plaintiff or any child in the plaintiff's care or custody."   This doesn't mean that an order can't include provisions for visitation, but only that the impact the order has on visitation shouldn't affect the choice to issue the order or for how long.  That choice is dependent solely on the necessity