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Wednesday, June 26, 2013

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 children."
Of course, things get even more complicated when divorced or unwed parents start second families. The increases described above only apply to children in the same case of the same parents.  When one parent has multiple children by separate parents, the guidelines are built to address this scenario as well (with certain limitations addressed below).  The 2009 guidelines specifically indicate that in creating a child support order, the court should consider the financial cost of a child from another relationship (whether there is a support order or not).  In modifying orders a subsequent new child cannot be used to reduce an existing order, but can be used to defend an increase.

While this language was clarified and the emphasis rearranged in the 2013 guidelines, the message essentially stays the same.  The guidelines take into account prior support orders and obligations when calculating new orders.

However, since the existing order only reduces the gross income available to calculate the new order, the addition of subsequent child support orders can eat away at a payor's income quickly.  Using the guidelines, without deviation, leaves most parents with no net income left to pay support after the fifth child by different parents.  While this is an unusual situation, it does occur and the guidelines do not fit these situations practically.  When the serial parent, like this man with 22 kids from 14 different women, is not lucky enough to hit the lottery or be an NFL star, those children are likely to be left with little to no support from that parent regardless of the what the guidelines require.

This is just one example, though, of where the guidelines might not account for a families unique circumstances.  Ultimately, the guidelines are a one-size fits all solution.  The Task Force every four years does their best to update the guidelines to fit as many possible scenarios as reasonably as they can.  In the end, though, if you can settle your case through mediation, collaborative law or settlement, you're much more likely to feel that your support solution fits your families unique situation better than the 2009 or the 2013 guidelines.


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 Prop 8 is unconstitutional under the U.S. Constitution's 14th Amendment, Due Process and Equal Protection Clause.
  • California officials refused to defend the law, and the Federal District Court allowed the Petitioners of Prop 8 to defend it.
  • The District Court, after a bench trial, declared Prop 8 unconstitutional.
  • Petitioners appealed to the Ninth Circuit, which certified a question to the California Supreme Court whether petitioners could defend the suit.  The California Supreme Court answered yes, that the petitioners do have standing to defend it.
  • The Ninth Circuit then affirmed the unconstitutionality ruling of the District Court.

On March 26, 2013, the case was argued in front of the Supreme Court of the United States.

On June 26, 2013, SCOTUS held that petitioners did not have standing to appeal the District Court's order.  This means that the District Court ruling stands and Prop 8 is unconstitutional in California, but does not create any controlling precedent for other states.

Here are some highlights from the majority decision written by Chief Justice Roberts:

"The public is currently engaged in an active political debate over whether same-sex couples should be allowed to marry."

"[P]etitioners, who oppose same-sex marriage, ask us to decide whether the Equal Protection Clause “prohibits the State of California from defining marriage as the union of a man and a woman.”

"Respondents, same-sex couples who wish to marry, viewthe issue in somewhat different terms: For them, it is whether California—having previously recognized theright of same-sex couples to marry—may reverse that decision through a referendum."

"Federal courts have authority under the Constitution toanswer such questions only if necessary to do so in the course of deciding an actual 'case' or 'controversy.'... This is an essential limit on our power: It ensures that we act as judges, and do not engage in policymaking properly left to elected representatives."

"In other words, for a federal court to have authority under the Constitution to settle a dispute, the party before it must seek a remedy for a personal and tangible harm."

"Here, however, petitioners had no “direct stake” in the outcome of their appeal. Their only interest in having the DistrictCourt order reversed was to vindicate the constitutional validity of a generally applicable California law."

"We have repeatedly held that such a “generalized grievance,” no matter how sincere, is insufficient to confer standing."

The Court relied heavily on Diamond v. Charles a case in which "we refused to allow Diamond, a pediatrician engaged in private practice in Illinois, to defend the constitutionality of the State’s abortion law.... because Diamond was not able to assert an injury in fact of his own."

The Petitioners argument that California authorized them to act as agents of the state to appeal the law failed as well because "the most basic features of an agency relationship are missing here. Agency requires more than mere authorization to assert a particular interest. “An essential element of agency is the principal’s right to control the agent’s actions.” 1 Restatement (Third) of Agency §1.01, Comment f (2005) (hereinafter Restatement). Yet petitioners answer to no one; they decide for themselves, with no review, what arguments to make and how to make them.... Neither the California Supreme Court nor the Ninth Circuit ever described the proponents as agents of the State, and they plainly do not qualify as such."

And perhaps the best point from the dissent written by Justice Kennedy:

"There is much irony in the Court’s approach to justiciability in this case. A prime purpose of justiciability is to ensure vigorous advocacy, yet the Court insists upon litigation conducted by state officials whose preference is to lose the case. The doctrine is meant to ensure that courts are responsible and constrained in their power, but the Court’s opinion today means that a single district court can make a decision with far-reaching effects that cannot be reviewed."

Conclusion:  The standing argument is still significant, even if you were hoping for something more substantive.

Justice Kennedy rightfully points out that this is an unusual situation where elected officials refuse to defend vigorously a law enacted by the same voters that elected them.  This civil disobedience of elected officials due presumably to moral objection to a Proposition passed by majority vote is an interesting sub-plot of the Prop 8 story which perhaps has not received enough attention.

Do voters have a right to require their elected officials, by majority vote, to enforce a law those officials find morally objectionable?  Or is that act of civil disobedience an appropriate check on a democratic system which at times is unbalanced because of majority rule.



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 of New York their Ontario marriage is a legally valid marriage.

Thea died in 2009 and left her entire estate to her wife, Edith, who sought to claim the estate tax exemption for surviving spouses.  Being denied due to DOMA's restriction of the definition of "spouse" for federal statutes, she paid $363,053 in estate taxes but challenged the constitutionality of his provision of DOMA.

While this suit was pending, the Attorney General of the United States notified the Speaker of the House of Representatives that the Department of Justice would no longer defend the constitutionality of DOMA’s §3.

In response, the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives voted to intervene in the litigation to defend the constitutionality of §3 of DOMA.

The Federal District Court and the Court of Appeals ruled that this portion of DOMA was unconstitutional and ordered a refund.

Here are some highlights from the majority decision written by Justice Kennedy:

"In 1996, as some States were beginning to consider the concept of same-sex marriage, see, e.g., Baehr v. Lewin, 74 Haw. 530, 852 P. 2d 44 (1993), and before any State had acted to permit it, Congress enacted the Defense of Marriage Act (DOMA), 110 Stat. 2419."

"DOMA contains two operative sections: Section 2, which has not been challenged here, allows States to refuse to recognize same-sex marriages performed under the laws of other States. See 28 U. S. C. §1738C." (emphasis added)

"Section 3 is at issue here. It amends the Dictionary Act in Title 1, §7, of the United States Code to provide a federal definition of 'marriage' and 'spouse.'"

"The enactment’s comprehensive definition of marriage for purposes of all federal statutes and other regulations or directives covered by its terms, however, does control over 1,000 federal laws in which marital or spousal status is addressed as a matter of federal law. See GAO, D. Shah, Defense of Marriage Act: Update to Prior Report 1 (GAO–04–353R, 2004)." (emphasis added)

"In the case now before the Court the attorneys for BLAG present a substantial argument for the constitutionality of §3 of DOMA. BLAG’s sharp adversarial presentation of the issues satisfies the prudential concerns that otherwise might counsel against hearing an appeal from a decision with which the principal parties agree."

"For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization. That belief, for many who long have held it,became even more urgent, more cherished when challenged. For others, however, came the beginnings of a new perspective, a new insight."

"State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, see, e.g., Loving v. Virginia, 388 U. S. 1 (1967); but, subject to those guarantees, “regulation of domestic relations” is “an area that has long been regarded as a virtually exclusive province of the States.” Sosna v. Iowa, 419 U. S. 393, 404 (1975).

"Marriage laws vary in some respects from State to State... But these rules are in every event consistent within each State... Against this background DOMA rejects the long established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next."

"The Federal Government uses this state-defined class for the opposite purpose—to impose restrictions and disabilities. That result requires this Court now to address whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment."

"DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. See U. S. Const., Amdt. 5; Bolling v. Sharpe, 347 U. S. 497 (1954). The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. Department of Agriculture v. Moreno, 413 U. S. 528, 534–535 (1973)."  (emphasis added)

"The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence."

"DOMA’s principal effect is to identify a subset of state sanctioned marriages and make them unequal."

"DOMA also brings financial harm to children of same sex couples."

"What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution."

What does it all mean?

First, this ruling means a refund of $363,053 to Edith Windsor.

For both same-sex marriages, and same-sex divorces, federal benefits between spouses are now available to same-sex married couples.  This includes over 1000 benefits as indicated by the Court, including filing joint tax returns and other tax benefits for spouses (such as the estate tax benefit at issue in this case).

What doesn't it mean?

The court did not rule on the constitutionality of same-sex marriage under the U.S. Constitution, and gave mixed signals as to how they might rule on that issue by trumpeting state's rights while at the same time walking right up to the edge of naming same-sex couples as a protected class without actually taking that leap.

Under section 2 of DOMA, left intact by this ruling, states can still refuse to recognize same-sex marriages from other states.

Fore more information about same-sex divorce in Massachusetts please visit SameSexMassDivorce.com


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 Alimony Reform Act of 2011: The Alimony Reform Act of 2011 significantly changed the landscape of alimony calculation and duration in Massachusetts.  The reference in the Act to income used in child support orders complicated the already confusing link between alimony and child support orders.  The Task Force identifies this link and encourages Courts, within the statute's discretionary provisions, to consider the fairest way of balancing the two types of support:
Chapter 124 of the Acts of 2011 (An Act Reforming Alimony in the Commonwealth)amended G. L. c. 208 and now prohibits the use of gross income which the Court has already considered in making a child support order from being used again in determining an alimony order. See G. L. c. 208, § 53(c)(2). Consideration may be given by the parties to preparing alternate calculations of alimony and child support to determine the most equitable result for the child and the parties. Depending upon the circumstance, alimony may be calculated first, and in other circumstances child support will be calculated first. Judicial discretion is necessary and deviations should be considered.
In Morales v. Morales, SJC 11104, the SJC clarified the standard for modification of Child Support orders. In child support modification cases, the SJC notes that the 2009 Child Support Guidelines are inconsistent with the statute where the guidelines required a change in circumstances to request a modification of an existing order.  The SJC clarified that under the statute "modification is presumptively required whenever there is an inconsistency between the amount of child support that is to be paid under the existing support order and the amount that would be paid under the Guidelines."

The Task Force responded by adding this exact language to the list of reasons for modifying an existing order:
A child support order may be modified if any of the following circumstances exist:
  1. there is an inconsistency between the amount of the existing order and the amount that would result from the application of the child support guidelines;
  2. health insurance previously available at reasonable cost is no longer available (or if available but not at reasonable cost); or
  3. health insurance not previously available to a party at reasonable cost has become available; or
  4. any other material and substantial change in circumstances has occurred. (emphasis added)



Tuesday, June 25, 2013

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 Guidelines still left questions as to how to handle cases that didn't fit a one-third or equal parenting time.  While the 2009 guidelines indicated that they were "based upon the child(ren) having a primary residence with one parent and spending approximately one-third of the time with the other parent" they didn't give guidance on what to do when a parent had less than one-third time.  Nor did they give guidance on where to draw the line between one-third time and "approximately equal."

The 2013 Guidelines make an effort to clarify these two issues, though arguably the result is still quite vague.

Less than one-third time:  The Task Force added to the new guidelines the following language:
If parenting time is less than one-third for the parent who is not the residential parent, the Court may consider an upward adjustment to the amount provided under the child support guidelines.
While this change recognizes the increased impact and financial costs on true "single parents" the direction given to the Courts is still less than clear.  In cases where the non-custodial parent is completely absent, this language will likely lead to Judges listening intently to arguments for increased support.  But when the parenting time works out to 25% instead of 33%, Judges will likely decline to exercise this additional discretion except in cases where a specific need is also shown.

In between 33% and 50% parenting time:  The Task Force also added to the new guidelines the following language:
Where parenting time and financial responsibility are shared in a proportion greater than one-third, but less than 50%, the child support guidelines shall be calculated first with one parent as the Recipient, and second as if the parties shared custody equally. The average of the base child support and the shared custody cross calculation shall be the child support amount paid to the Recipient.
This is essentially a compromise between the 33% and 50% calculations, but still doesn't give exact direction to parties or the Courts.  If a parent has 49% of the parenting time, is that "approximately equal" or "less than 50%".  Obviously, it is both.  So which paragraph applies?  The Court will likely provide some common sense rulings in these cases where the lines are blurred, and the parties may need to get guidance from the Court or use practical and experienced attorneys to assist them in reaching reasonable agreements.

While the direction to the Judges is not exactly clear with these two additions, the direction to parents is quite clear.  The more involved you are in your child's life, the lower your child support will be.  While tying these two issues together can create problems when negotiating parenting plans, this was definitely on purpose.  The Task Force clearly hopes that this language results in non-custodial parents making a greater effort to be involved in their child's life.  Even if it's for the wrong reasons, children benefit from having a strong relationship with both parents in most cases.


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 gross income of the parties of $250,000. In cases where combined available income is over $250,000, the guidelines should be applied on the first $250,000 in the same proportion as the Recipient’s and Payor’s actual income as provided on line 1h of the child support guidelines worksheet. 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. The child support obligation for the portion of combined available income that exceeds $250,000 shall be in the discretion of the Court. (emphasis added)
While this proportional approach was suggested in the report which accompanied the 2009 Child Support Guidelines, it was not specified in the Guidelines themselves.  The new guidelines, therefore, clarify that this is the appropriate method to generate a presumptive minimum support order.

The 2013 Guidelines still do not provide guidance of how the Court should exercise it's "discretion" with the income over $250,000.  However, the new worksheet encourages Judges to consider the proportional income both parties have over the $250,000 cap, by displaying those amounts at the end of the form.  Seeing this figures will give Judges a clear picture of how much income each party has above the $250,000.

Displaying this information on every worksheet will not just assist Judges in calculating these amounts, but also highlight the difference for them.  While we can't predict exactly what Judges will do with this information, having it handy encourages them to consider what they might do with that information and will likely lead to more specific factual findings as to how Judge's are exercising their discretion on the excess income.


Monday, June 24, 2013

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 completing the new worksheet.

For now, let's make some basic comparisons.  Below you will find a chart displaying the comparison of child support totals for 1 child vs. household income (before multiplying the child support by proportion of income).  As this chart shows, the new guidelines will result in a typical reduction of between 10 and 15% for most cases.



Because the multiplier for additional children increases in the new guidelines, as shown below, the impact of this reduction will be felt less in cases with multiple children:



Other changes to the guidelines may also suggest that child support orders should be lower or higher than the current orders.  A summary of the other changes is provided below, direct from the court's press release:

  • Income from means tested benefits such as SSI, TAFDC, and SNAP are excluded for both parties from the calculation of their support obligations.
     
  • Availability of employment at the attributed income level must be considered in attribution of income cases.
     
  • The text makes clear that all, some, or none of income from secondary jobs or overtime may be considered by the court, regardless of whether this is new income or was historically earned prior to dissolution of the relationship.
     
  • Reference is made to the 2011 Alimony Reform Act; the text does not, however, provide a specific formula or approach for calculating alimony and child support in cases where both may be appropriate.
     
  • Clarification is given as to how child support should be allocated between the parents where their combined income exceeds $250,000.
     
  • A new formula is provided for calculating support where parenting time and expenditures are less than equal (50/50) but more than the assumed standard split of two thirds/one third.
     
  • Guidance and clarification is given in the area of child support over the age of eighteen where appropriate.  While the Guidelines apply, the court may consider a child’s living arrangements and post- secondary education. Contribution to post-secondary education may be ordered after consideration of several factors set forth in the Guidelines and such contribution must be considered in setting the weekly support order, if any.
     
  • The standard for modification is clarified to reflect the recent Supreme Judicial Court decision in Morales v. Morales, 464 Mass. 507 (2013).
     
  • Circumstances justifying a deviation are expanded to include extraordinary health insurance expenses, child care costs that are disproportionate to income or when a parent is providing less than one-third parenting time.
     
For more information and the new worksheet visit the court's website.


Friday, June 21, 2013

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 visitation schedule, pick-up and drop-off locations, and even agreements relating to what will happen if one of the children becomes ill.

For babies, parenting plans must take into account the need for the child to have consistent contact with both parents in order to enable bonding.  In an attempt to recognize the different needs of children at a different ages, a committee of mental health practitioners, family law lawyers and Judges was formed. They wrote a very useful guide to shared parenting called Planning for Shared Parenting: A Guide for Parents Living Apart. 

If Unmarried Parents need help working out the details of how to plan for the baby we recommend that they consider attending counseling or mediation together.

For more information visit our webpage devoted specifically to information for unmarried parents.


Friday, June 7, 2013

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

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 tells divorcing spouses who are also parents: "Today I divorce you as husband and wife, but you will never be divorced as parents."  Divorced parents are still Mom and Dad, and nothing changes that.

In many cases (maybe even most cases), divorce involves a breakdown in trust between the two parties.  Co-parenting with someone with whom you don't have a trusting relationship can range from difficult to impossible.  In Collaborative Divorce and Mediation, we often focus on the ways in which couples can build communication and enough trust to co-parent effectively after their divorce is final.

One of the most powerful skills that couples can work on to build trust and cooperation is acknowledgement.

We've all heard the complaints that separated parents have about the other parent.  Parenting together is difficult enough, and parenting apart is bound to lead to even more misunderstandings.  But how often do you hear separated parents praise each other's efforts.  How different would conversations between exes be if they began with an acknowledgement of what the other parent is doing well, instead of starting in on what's wrong.  When you acknowledge someone else's strengths they are more likely to be understanding when you have disagreements, because they can trust you to see both the good and the bad.

Even in difficult cases most people will still admit that the opposing party is a good parent.  However, the absence of a Father's Day card category "For My Ex-Husband" suggests that very few ex-wives make a point of telling their ex-husband that they're a good father, even on the day that is specifically designed for that.

So while we wait for greeting card companies to figure this out, buy your ex-husband a tie or a tool or a generic Father's Day card.  Even a cliched Father's Day gift will make a big impression because even though you're not married anymore he is still a Dad, and that deserves recognition.

Wednesday, June 5, 2013

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 there are a lot of lawyers out there, and that they are not all equal in service, price, or knowledge.  Despite their awareness of this disparity many people still hire the first lawyer they interview.  Usually when going to a lawyer's office it is for some event that makes people feel vulnerable.  This is especially true in a divorce case, and just the act of meeting with a lawyer and explaining the circumstances surrounding the breakup of a marriage can be stressful and scary.  Most clients don't want do have that meeting more than once, and as long as the first lawyer they meet with is even remotely competent, they're hired.

But did you hear all your options?  Did you choose the best option for you?  And did you find a lawyer that fits your personality and values?  If you didn't, you'll probably be unhappy with the result in your case or end up hiring another lawyer.  Either way you won't feel like the money you spent was worth it.

So what should you look for when hiring an attorney?

1. TRY A SAMPLE:  Don't be afraid to interview multiple lawyers.  Many will offer free or reduced fee initial consultations or even low-cost meetings compared to their regular rates.  Just like my experience sampling beer, you might be surprised by how different your experience with different lawyers might be.

2. COMPARE SAMPLES:  If you interview multiple lawyers then you have the opportunity to compare how they addressed your concerns.  Did the lawyer give you a one-size-fits all speech or did they address the specific issues in your case.  If you only tried light beer, would you even know that there were better options out there?  Many people probably end up hating lawyers because they never took the time to find a good one.  Now is your best chance to see what else is out there.

3. KNOW YOUR OPTIONS:  Different lawyers practice differently. This is especially true in the area of family law and divorce.  Some lawyers prefer to litigate issues and let the Judge decide, and others work hard to settle outside of court.  Rule 5 of the Supreme Judicial Court Uniform Rules on Dispute Resolution (SJC Rule 1:18) requires lawyers to explain that there are other options besides going to court to resolve disputes.  Did you hear about all of these options?  If a lawyer doesn't practice Collaborative Divorce or Mediation, they may not give you much information on these options, but you aren't making an informed decision about your case without knowing the truth about these options.

4. DO YOUR HOMEWORK:  I don't make any hiring decisions without looking at someone's website.  What image do they project to the world?  Is it professional?  Is it consistent with your values and how you want your case handled?

5. CHOOSE SOMEONE YOU TRUST: Did you feel heard?  If you didn't communicate well with the lawyer in the interview, don't expect that to change when your case starts.  You need to find a lawyer that listens to and understands your goals, and can explain effectively to you how they intend to achieve those goals.  Cost should be a factor, but it is only one factor, because if you choose someone you can't work well with you will end up paying for a second lawyer too.

Sometimes you have to pay a little extra when you find that good beer, but if you really compare it to what else is out there, you will realize it's worth it.


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