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Tuesday, April 30, 2013

What is the Standard for Amending Parenting Plans?

Most parenting plans drafted by experienced practitioners will include language along the following lines:
"Nothing contained in this Agreement shall preclude both parents from jointly and voluntarily modifying the above-described co-parenting schedule or from reaching agreements for the co-parenting of the children by the parents that are not in conformity with the foregoing co-parenting schedule provided that such modifications and agreements be reduced to a writing in advance and be signed and/or otherwise (e-mail) confirmed and/or otherwise ratified by both Parties. Either parent may request a modification of the foregoing parenting schedule from the other parent. Any modification of the parenting schedule shall be requested reasonably in advance, except in emergency situations. The Parties shall take into consideration the best interests of the children when discussing exceptions to the parenting schedule."
This language is intended to encourage parents to discuss necessary adjustments to their parenting plan to accommodate things that come up in every day life which can make a strict schedule impractical.

But what happens when a more permanent change is required?  If the parents can't reach an agreement as to whether a change is in the best interest of the children, then the court can decide whether a change is appropriate upon the filing of a Complaint for Modification.

Use our Parenting Calendar Worksheet
to help visualize proposed schedules
What standard does the court use in reviewing proposed changes to a Parenting Plan?

In a recent Massachusetts Appeals Court case, Diamond v. Diamond 82 Mass. App. Ct. 1124 (2012), the Appeals Court upheld a trial court judge's modification of a parenting plan, which added one additional overnight visit with the children in every two week period.

If it ain't broke don't fix it: The mother, who appealed, the decision, argued that the parenting plan was working, and that the court should, therefore, not make any changes to it.

Let's do the best we can: The court disagreed, finding that as long as there was a material change in circumstance that allowed for the court to hear a modification request, the trial court could make a change that will further the best interest of the children.

This is an important distinction between maintaining the status quo, if it is working, and making changes which the court is convinced will be better for the children.  If the changes haven't been tested, then the court can't know for sure, but the Appeals Court in Diamond confirmed that the trial court's discretion allows for such a change.

As a practical tip, this ability of the court to make untested changes at a Modification trial, might be a good argument for temporary orders in a non-emergency situation.  At least if a new schedule is tested in temporary orders we would that have information about whether it really was better for the children in practice.  This type of negotiated trial and error is also often encouraged in mediation and collaborative practice, both of which are options that probably could have saved these parties a lot of money.


Monday, April 8, 2013

Cohabitation: What is it?

Cohabitation typically refers to two people in an intimate relationship living together while not being married.  According to a USA Today article summarizing recent cohabitation statistics, cohabitation is increasing significantly.  Women cohabiting with men as a first union has increased from 34% in 1995 to 48% in 2010, and the length of time that this first cohabitation has lasted is increasing as well.  With cohabitation increasing, the likelihood of children born out of wedlock increases as well.

In post-divorce situations, cohabitation often comes up in alimony cases.  Because alimony ends upon remarriage of the recipient it is common for recipients to cohabit instead of marrying when in an intimate relationship to avoid the end of their alimony.  While it was always possible to argue that cohabitation reduced the need of the recipient, the Alimony Reform Act of 2011 included cohabitation specifically as a reason for terminating, suspending or reducing alimony.

M.G.L. c. 208 s 49(d) reads specifically that:
"General term alimony shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payor shows that the recipient has maintained a common household, as defined below, with another person for a continuous period of at least 3 months.

(1) Persons are deemed to maintain a common household when they share a primary residence together with or without others. In determining whether the recipient is maintaining a common household, the court may consider any of the following factors:

(i) oral or written statements or representations made to third parties regarding the relationship of the cohabitants;
(ii) the economic interdependence of the couple or economic dependence of 1 party on the other;
(iii) the common household couple engaging in conduct and collaborative roles in furtherance of their life together;
(iv) the benefit in the life of either or both of the common household parties from their relationship;
(v) the community reputation of the parties as a couple; or
(vi) other relevant and material factors.

(2) An alimony obligation suspended, reduced or terminated under this provision may be reinstated upon termination of the recipient’s common household relationship; but, if reinstated, it shall not extend beyond the termination date of the original order."

Because the law has only been in effect since March of 2012, there is no guidance from the appeals court yet on how this section will be interpreted.

It is important to note that while the language allowing Judges to terminate, suspend or reduce does give discretion as to how much a cohabitation will change alimony, the Judges do not have discretion in whether or not to make some change because the language begins with "General term alimony shall be..."


Thursday, April 4, 2013

Does the court consider tax consequences in a divorce?

As the income tax filing deadline approaches, we are all wondering how we can reduce our income tax bill and increase our refund.  Anyone who is considering divorce, going through a divorce, or has been divorced should consider how their divorce case could affect that tax bill.

We previously posted a series on Divorce & Taxes including the following topics:

Divorce and Taxes: Issue #1. Marital Status

Divorce & Taxes - Issue #2. Child Support v. Alimony

Divorce and Taxes: Issue #3. Child Dependency Exemptions.

Divorce and Taxes: Issue #4. Property Transfers.

Divorce and Taxes: Issue #5. Joint Tax Liability.

Divorce and Taxes: Issue #6. Same Sex Marriages.

Whenever any of these issues arise in a case, it is imperative that divorcing spouses and their counsel consider the tax consequences when negotiating a settlement.

In a recent opinion, the Massachusetts SJC confirmed the importance of considering income tax consequences of divorce orders and specifically ordered that a Judge, even when applying their broad discretion, must consider the potential impact of taxes on the divorce settlement.  In L.J.S. v.s. J.E.S. the SJC remanded a Judge's alimony decision finding that the Judge erred by not considering the potential Federal tax consequences.

For practitioners and parties, this decision underlines the importance of getting proper tax advice during your divorce case or negotiation.  The Judge must consider the impact of taxation on your settlement, but the Judge won't know unless you present the evidence of what that tax impact will be.


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