WE HELP FAMILIES RESOLVE CONFLICT PEACEFULLY


Friday, October 31, 2014

Court Awards Custody to Abusive Father. Still Think Court is Safer than Mediation?

The Massachusetts Appeals Court published a decision today in a particularly saddening and difficult divorce case in which the lower court awarded custody to a father despite a finding that the father had been physically abusive to the mother.  The job of a trial Judge is not an enviable one and I don't intend to second-guess the decision which included weighing the testimony of two experts and was very fact specific.

In reading the full decision it is obvious the court was forced to choose between two extremely undesirable results. The trial court relied on the children's problems with their mother and abuse between them and her in awarding primary custody to the father.  The Appeals Court points out that the GAL and children's therapists could not find any evidence that the father brainwashed or alienated the children from the mother.  However, the court acknowledged that the children witnessed abuse by the father against the mother, and pointed out the harm suffered by those who witness domestic violence.

The court's decision and these principles seem incompatible.  Unfortunately though, it is obvious that no matter the decision made by the court it would have been an imperfect one.  It is possible that the children will be in danger of witnessing or being involved in further domestic violence regardless of which parent was awarded custody.  Not only did the court process fail to ensure the protection of these children, the stress and animosity created by the process probably increased the risk.

Sometimes the court just can't solve these types of problems effectively.  The mother in this case most likely spent a fortune to have a parent alienation expert testify for no benefit.  What if the mother had engaged that expert for a different purpose?  What if the mother had engaged that expert to help her fix her broken relationship with her children, regardless of the cause?  What if these parties had tried mediation or collaborative law instead of litigation?  

While it is important that the court exists as a last resort for obtaining protection for victims of domestic violence, this case is the perfect example of how the court only has imperfect solutions to offer families.  It is my hope that rather than continue to litigate after receiving this Appeals decision the family in K.A. v. T.R., and others like them seek the help of experts (divorce coaches, parent reunification experts, mediators, etc.) to help them seek solutions that are better than what the system has offered them.

October is Domestic Violence Awareness Month and it is ironic that on the last day of October this decision is published.  Victims of domestic violence need to be aware of the resources available to them such as the Domestic Violence / Sexual Assault Agencies and Hotlines in Massachusetts.  In addition, Awareness should include knowledge about the options that victims have besides court, options which ultimately might serve their and their children's needs better.  If you doubt that mediation or collaborative law could have done better in this case, I invite you to read the entire decision in K.A. v. T.R. and comment below.


Tuesday, October 28, 2014

Appellate Questions on Alimony Termination – You Decide!

UPDATE: The SJC decided all three of these cases on 1/30/2015.  Our post regarding the decisions can be read here: Lifetime Alimony is Back (for some)! - Chin v. Merriot

Original Post:

There are three appeals pending before the Massachusetts SJC which will significantly impact how the Alimony Reform Act of 2011 is interpreted by the courts.  All three cases have to do with whether the parts of the Act can apply when modifying Judgments or Agreements entered prior to the Act’s effective date (March 1, 2012).  Each case deals with a slightly different component of this issue:

Doktor v. Doktor (SJC-11727) presents the question of whether the Act's provision regarding termination of general term alimony upon full retirement age (see M.G. L. c. 208, § 49f) applies to a divorce judgment that predates the Act, where the payor reaches retirement age after the effective date of the Act.  In addition, the case should address whether, and how, the parties' respective assets should be considered in determining the continuing need for, and ability to pay, alimony after retirement.  If the Act's termination on retirement clause applies to this Judgment, then the lower court erred in dismissing the husband's Complaint for Modification of alimony due to his retirement.  Oral Arguments, which occurred on October 6, 2014, can be seen here.

Rodman v. Rodman (SJC-11726) presents the question of whether the provision of the Act regarding termination of general term alimony upon full retirement age (see M.G. L. c. 208, § 49f) applies to a divorce judgment that predates the Act, where the payor reaches retirement age after the effective date of the Act.  If the Act's termination on retirement clause applies to this Judgment, then the lower court shall consider the husband's Complaint for Modification of alimony due to his retirement.  Oral Arguments, which occurred on October 6, 2014, can be seen here.

Chin v. Merriot (SJC-11715) presents the question of whether  the provision of the Act regarding suspension, reduction, and termination of general term alimony based on a recipient spouse's cohabitation with another (see M.G. L. c. 208, § 49d) applies to a divorce judgment that predates the act, where the cohabitation began before the effective date of the Act and continues after the Act became effective.  In addition, the case also asks whether the provision of the act concerning the termination of general term alimony upon full retirement age applies to a divorce judgment that predates the Act, where the payor reaches retirement age after the effective date of the Act. If the Act's termination on retirement clause or cohabitation clause applies to this Judgment, then the lower court erred in dismissing the husband's Complaint for Modification of alimony. Oral Arguments, which occurred on October 6, 2014, can be seen here.

The intent of the Act, according to Steve Hitner of Mass Alimony Reform was to apply retroactively as the plaintiff's in these actions are trying to do.  He was on the Task Force so he should know.  However, others have argued that the strict language of the statute requires exactly the opposite.

I think that the statutory construction question is whether the term "durational limits" includes only the duration limits in section 49(b) or also includes the termination language in section 49(f) and 49(d).  While both sides (as is typical in litigation) argue that there view is obviously correct, the reality is that there was an unfortunate ambiguity left in the way the statute was drafted.  If it referred directly to the sections by letter, there would be no ambiguity.

While it ultimately only matters what the SJC thinks, we would like to know your opinion.  Vote below and we’ll report back when the SJC casts their (more official) vote:

Should the Act's termination of general term alimony for a payor who reaches full retirement age apply to Judgments and Agreements entered prior to the Act's effective date:



Should the Act's reduction or termination of general term alimony for sharing of a common household apply to Judgments and Agreements entered prior to the Act's effective date:



Wednesday, October 15, 2014

3 Things that Mediation is NOT

Mediation has become a popular alternative to court proceedings, with mediators resolving disputes of all kinds ranging from private family matters to the very public NFL lockout.  But there is still a significant amount of confusion about what is mediation and what can a mediator do for you.  Some of the most common misconceptions follow:

1. Mediation is NOT Arbitration!

Many people assume that the purpose of a mediation is to have a trained third party help them make decisions by choosing a solution when they can't agree, and this misconception has been popularized by shows like Untying the Knot.  Bravo TV's show about a New Jersey divorce attorney and mediator, Vikki Ziegler, follows one issue (usually property division) through brief evaluation and "recommendation" sessions.

In order to be able to fit the resolution of an issue into a half hour of drama, the show has a formula based on Vikki pushing the spouses to settle their disputes by making a "recommendation" that often sounds much more forceful:  in one of the previews, Vikki tells the husband to "zip your mouth and shake her hand."  While this might result in settlements in many cases, the formula for this show is much more akin to arbitration or case evaluation than mediation.

When we are involved in an argument or a conflict there is an understandable tendency to want to win, or to be vindicated as the one who is "right".  If we can't convince the other side that we're right and they're wrong, then we want someone else to make the decision.  If you go to court to resolve a dispute and are unable to reach a settlement, the judge (or in some cases a jury) will be that someone.  If you hire an arbitrator then they will make the decision instead of a judge, but mediation is something different.

Mediation is about having help to make the decision together, instead of the mediator making the decision for you.  That may sound harder than letting someone else decide but it is usually much more rewarding, especially in divorce cases.  Even a trained professional is never going to know as much about your life and your goals as you do.  Why let them decide?

2. Mediation is NOT one attorney for two people!

Many people choose mediation because they want the advice of an attorney but don't want to pay for two attorneys.  While a mediator who is also an attorney can provide you with legal information, they cannot advise each of you individually.  This is an important, and sometimes complicated distinction.

The reason a mediator can't give you legal advice, is because the mediator doesn't represent you or the other party, nor does a mediator represent both of you. It is not ethical or practical for an attorney to represent both parties in a case. In fact, Rule 1.7 of the Massachusetts Rules of Professional Conduct prohibits an attorney from representing a client if that representation will be directly adverse to another client.

It is not reasonable to believe that an attorney can represent two adverse clients at the same time in the same action and look out for both of their interests. It is possible to have an attorney act as a mediator but in that case the attorney does not represent either party and is not looking out for either of your individual interests as an advocate would. Instead, the role of a mediator is to assist the two parties in reaching an agreement that they are both satisfied with, regardless of whether that agreement in the opinion of the mediator might favor one party or the other.  That is why many people in mediation will consult with their own attorney, at least briefly, at some point in the mediation process so they have the opportunity for individual advice as well.

3. Mediation is NOT Meditation!

Okay, I know this one seems obvious but in a world where search engines control the flow of information, there are still some people who think meditation and mediation are the same thing.  If you search for iPhone apps relating to mediation, you receive mostly meditation apps.  In addition, mediation and meditation do have some things in common.  Mediation involves listening and channeling your goals before making decisions.  Also mediating a dispute is more likely to lead to enlightenment and relaxation than letting someone else decide for you.

So if you're looking for a way to resolve your dispute that is more self-aware, then mediation might be for you, even though it's not meditation.

If you want to learn more about mediation click here, or contact Attorney Justin Kelsey.


Thursday, October 9, 2014

Collaborative Law is Growing!

If you follow our posts at all you're probably aware that attorney Justin Kelsey is a Collaboratively trained Divorce attorney and Mediator.  But did you also know that three other attorneys at Kelsey & Trask, P.C. are Collaboratively trained as well?

Full time Associate, Valerie Kua, and of counsel Jonathan Eaton have both taken the Collaborative Training and regularly use those skills in their family law practice to settle both Collaborative and cooperative cases (if you don't know the difference click here).  In addition, of counsel to Kelsey & Trask, P.C., Beth Aarons is a trained Collaborative attorney who practices in both family law and estate planning & probate.

At Kelsey & Trask, P.C. we strongly believe that Collaborative Law is the future of dispute settlement, and not just in divorce cases.  For example, if you have an estate planning or probate dispute, you may want to consider Collaboratively trained counsel as well.   Even other civil matters, such as business disputes, can be resolved through the Collaborative process or using Collaborative skills.

If you want to learn more, we encourage you to join attorney Matthew Trask in attending the upcoming MCLC Training on Resolving Business Disputes by Collaborative Law:


presents:


Business disputes are bad for the bottom line, whether they involve breakups, exit plans, family issues or garden variety commercial disputes.  The good news is that there is a way to deal with these problems that does not involve the expense, delay and emotional stress of litigation.  If you are interested in exploring about a new way to deal with business disputes, one that has proven effective in other areas of the law, this training is for you - whether you are already a collaborative practitioner, are a lawyer who wants to add collaborative skills to your resume, or are simply a business owner, CPA or business advisor who wants to know more.

This is a 3.5 hour training taking place on Friday, December 12, 2014 from 1:00 pm to 4:30 pm in Woburn, MA.



Divorce Support Groups in Massachusetts

Going through a divorce is the second most stressful life event next to the passing of a loved one. When a loved one dies, we have numerous traditions and rituals that ensure that we have support to help us grieve.  In contrast, divorce is too often experienced alone.  While we encourage our divorce clients to seek support of friends, family and therapists, that doesn't work for everyone.  Sometimes friends and family don't understand, and therapy isn't the answer for everyone.

When some options don't work, that doesn't necessarily mean that you have to go through your divorce alone.  It is important to realize that other people are experiencing the loss of divorce as well and in some cases sharing that experience can be useful.  Divorce Support Groups are one way to find that support and there are options for both women and men:

Divorce Support Groups for Women: http://oonametz.com/



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