WE HELP FAMILIES RESOLVE CONFLICT PEACEFULLY


Wednesday, July 19, 2017

8 Changes in the 2017 Massachusetts Child Support Guidelines

Update: Use our 2017 Guidelines Calculator here.

Every four years the Child Support Guidelines in Massachusetts are updated by a Task Force appointed by the Chief Justice of the Trial Court.  In 2013 the Guidelines were updated and significant changes were made to the formula and to the parenting time language.  The Guidelines have been updated again for 2017, and the new guidelines take effect on September 15, 2017.  These are the primary changes:

1. Change in Format

Previous Guidelines contained a few footnotes, but for the most part were free of commentary.  The 2017 Guidelines include Principles and Comments to assist parties and the Court in interpreting and applying the Guidelines.

2. Raising the Minimum Amount of Child Support to $25 per week:

The minimum amount of child support since 2002 has been $80 per month ($18.46 per week).  The Task Force recommended raising this amount to $25 per week to reflect updated economic data.  This minimum presumptive order applies up to $115 per week in support.

While $7 per week may not make a huge difference to families (or be worth going to court to modify) it is an important gesture for the Task Force to recognize that these minimums should not stay stagnant and should at least keep up with inflation.

3. Parenting Time - Eliminating the In-Between Category (33-50% parenting time):


One of the more controversial changes in the 2013 Guidelines involved additional language related to parenting time.   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."

However, the 2009 Guidelines still left questions as to how to handle cases that didn't fit a one-third or equal parenting time.  The 2013 Guidelines made an effort to clarify these two issues, though arguably the result was still quite vague.  The 2013 Task Force added language allowing the court to consider a deviation upwards when the payor had less than 1/3 of the time, and added an averaging calculation for cases where parenting time was in between 33 and 50% of the time.  The average category in particular was highly criticized for increasing litigation over small amounts of parenting time.

The 2017 Task Force, recognizing these issues deleted the in-between category, and clarified the deviation factor by adding a principle to guide Judges in their determinations:
"recognizing that deviations should be used when appropriate to tailor a child support order to the unique circumstances of a particular family."
While the 2017 Task Force has highlighted the importance of the appropriate use of discretion this only increases the uncertainty that parties have when going in front of a Judge, and this remains a strong argument for self-determination and the use of out-of-court settlement options, such as mediation, whenever possible.

4. Child Care & Health Care Costs - A proportional adjustment with a cap:

The new guidelines formula tries to give appropriate adjustments to the order for the payment of child care and health care costs because of the significant impact these costs can have on a family.  However, they kept in a cap to avoid these expenses overtaking or eliminating the support order.  This means that whoever pays for child care or health care costs will not get a dollar-for-dollar credit and how parents split these expenses will still have a significant impact on their bottom-line net expenses.

We encourage our clients to run the guidelines multiple ways, trying the expenses in one way or split, in order to see the net difference.  This will still be necessary, though these changes will help to minimize in certain circumstances the extreme differences that could occur under the previous guidelines due to these expenses.

5. Children Between the Ages of 18 and 23 - A New Formula:

The 2013 guidelines indicated that the formula was not presumptive once a child turned 18, though the statute still allowed for support to be ordered.  This left a lot of room for deviation and in many cases resulted in simply a continuation of support at the same amount.  The 2017 guidelines require a 25% reduction in the amount of support attributable to a child over age 18.  This means that there is a presumptive amount of support owed for children over 18, up until age 23, though the court still has discretion to deviate, and the emancipation factors still apply.

When there are multiple children Table B on the Worksheet indicates how the total percentage is reduced, since only the portion attributable to the adult child should be affected.

This change will certainly lead to numerous modification requests by parents, and we are hopeful that many of them will consider using mediation and filing Joint Petitions for Modification rather than litigating these issues which should be pretty straightforward under the new guidelines.

6. A Cap on the Presumptive College Expense Contribution: 

The 2013 guidelines lumped college expenses in with other extra expenses (like private school or extra-curricular activities) which a Judge has discretion to order a parent to contribute to on a case-by-case basis.  The 2017 guidelines have a separate section dealing specifically with these expenses.  While noting that contribution to these expenses is not presumptive, the guidelines provide factors for considering whether the court should order a parent to contribute to college expenses, and provides a cap on that contribution equal to 50% of the undergraduate, in-state resident costs of the University of Massachusetts-Amherst.

The Guidelines also note that if college education contribution is ordered in addition to child support then "the Court shall consider the combined amount of both orders."  No guidance is provided in the comments about how this shall be considered, but presumably this is a nod to the Judge's ability to decrease child support if the combined amount is too great.

7. Clarifying Modification Language:

The 2017 guidelines clarify that any inconsistency with a guidelines order can result in a new order once a Complaint is in front of the Court.  However, cases where the original order was a deviation won't necessarily change just because of an inconsistency which is inherently obvious, or the order would immediately be modifiable after being agreed to.  The new guidelines add further clarity as to when a deviation order can be modified, or should remain.

8. Self-Employment, Imputed and Attributed Income:


The Task Force reorganized and clarified each of these sections with an emphasis on when income should be counted for the child support calculation on both the payor and recipient side.  While overtime income may be excluded, the emphasis of most of the changes is on including additional income when appropriate, such as non-taxable self-employment income, undocumented income (including reference in the comments to free rent), and clarifying specifically the case law on attributable income due to unemployment or underemployment.

BONUS: Notable Choices Not to Change Certain Sections:

Alimony Interplay: The Task Force encourages the court and parties to consider the tax effect of support when choosing between child support, alimony and unallocated support.  However, they did not make any changes to the guidelines language in this section citing the lack of any case law on this issue since the last update.

Maximum Income: The guidelines only apply up to $250,000 of combined household income and the Task Force made no changes or further recommendations on how to deal with income above $250,000 except to note that it is discretionary.

For more information check out these links:

The 2017 Massachusetts Child Support Guidelines

The 2017 Massachusetts Child Support Worksheet

The Report of the 2016-2017 Task Force

The Economist's Report 2016-2017 (for those of you who like charts and graphs!)

Information on Mediation

Information on Collaborative Law



Tuesday, May 30, 2017

Can a person reporting a Restraining Order violation be sued if they're wrong?

Though our work is primarily focused on family mediation, a recent Anti-SLAPP case caught our attention. The Anti-SLAPP statute protects those “petitioning” a government entity from retaliatory civil lawsuits.  The recent case of St. Germain vs. O’Gara references this statute, in the context of a reported allegation of violating a restraining order.

St. Germain, the defendant, reported O’Gara to the police for violating a permanent abuse prevention order. She reported that St. Germain mailed documents to her which violated the protection order, but it turns out were properly filed court documents.  O’Gara was arrested for perceived violation of the order but later released due to lack of evidence against him.

The trial court denied St. Germain’s motion under the Anti-SLAPP statute to dismiss O’Gara’s complaint against her.  However, the Appeals Court found that the trial court failed to apply the two-part test appropriately.  The two part test requires first that the moving party show that the suit against her relates only to the petitioning activity, and if proven then the burden shifts to the opposing party to show "by a preponderance of the evidence, that ‘(1) the moving party's exercise of its right to petition was devoid of any reasonable factual support or any arguable basis in law and (2) the moving party's acts caused actual injury to the responding party.’ "

While the trial court indicated that there wasn’t enough factual evidence to rule on the Motion in favor of St. Germain, the Appeals Court disagreed.  The Appeals Court believed that St. Germain met the first part of the test because her report to the police was “petitioning activity” under the statute:
“When a person reports suspected criminal activity to the police, she is engaging in constitutionally-based petitioning activity for purposes of G. L. c. 231, § 59H.”  
While there were multiple counts to O’Gara’s complaint, they all stemmed from this petitioning activity and therefore the first part of the test was met.  The second part of the test required O’Gara to “establish by a preponderance of the evidence that ‘no reasonable person could conclude’ that St. Germain's report to the police was supported either in fact or in law.”

Here is where St. Germain believes she had a reasonable case to reach out to the police:

  1. She made attempts to check that the filing was proper:  Upon receiving the letters from O’Gara, St. Germain noted that there were no stamps certifying that the hand-written notes were official court documents. Though she was wary of the lack of court seals, she did not assume guilt and checked in with an unidentified individual at the Probate and Family Court who reported that “that there was no record whatsoever of the unstamped documents (that St. Germain) received."  It later turned out they had been likely been filed by mail and misplaced by the court.
  2. She reached out to a Police Officer to investigate who reached the same conclusion:  The officer investigated the inquiry and agreed that O’Gara had violated his order based on the documents he reviewed and his conversation with the Probate and Family Court. St. Germain did not propose the arrest but it was rather the officer that contacted the New Bedford police who took O’Gara into custody.

But O’Gara countered that he did contact the court and that St. Germain’s conversation with the police was malicious.  In the end, even if the Appeals Court agreed that her conduct was malicious (which they don’t seem to), the Court concluded that the intent wouldn’t matter under the Anti-SLAPP statute, so long as any reasonable person could agree that her petitioning activity had a basis in fact or law.

It was therefore determined that St. Germain could have been reasonable in believing the mailed documents were in violation of the restraining order.  While the facts later resulted in O’Gara’s prosecution being dismissed, that doesn’t overcome the burden required to proceed with his claims against St. Germain.  In other words, the Appeals Court believed that this is exactly the type of petitioning activity the Anti-SLAPP statute is intended to protect.

St. Germain was protected by the Anti-SLAPP statute and the case was remanded for an order allowing her Special Motion to Dismiss and to address the issue of attorney’s fees.

Written by Justin Kelsey & Patricia Cordischi

Thursday, May 25, 2017

Meet Our Summer Intern - Patricia Cordischi

Along with our projected move (more on that soon!) and fresh start to the summer, we have taken on a new member of the Skylark team. Patricia Cordischi, a rising senior at Brandeis University, officially started this week as our  Skylark summer intern. Patricia is minoring in legal studies at her university and curious about the world of law. She is highly interested in family law but wishes to explore beyond the domestic realm into entertainment law.

At the office, Patricia will have various responsibilities including administrative work, drafting, and sitting in on consultations. She will be answering your phone calls and will hopefully be another friendly face you can speak to. Her background is in marketing, specifically in re-branding of company’s digital platforms, so she will be instrumental in maintaining our blog as well.

She is a go-getter and quick learner. With each new endeavor she takes on, Patricia is determined to excel. Patricia looks forward to getting to know both our present and future clients and colleagues. Please do not be shy to say hello and introduce yourself.

Welcome to Skylark Law and Mediation Patricia! We are lucky to have you!

Thursday, May 18, 2017

5 Tips for Adding Video to your Mediation Practice

Video meetings are starting to
replace in-person and phone meetings.
Guest Post from Julie Tolek*

As more services go digital, it is necessary for legal and mediation professional to follow the trend. Clients expect an equal level of convenience and access in purchasing legal and mediation services that is provided in other online services. This means that the technological requirements on a modern law and mediation firm go well beyond having a good website.

It is important for forward thinking mediators and lawyers to add online scheduling, paperless billing, cloud file access and similar options to their regular services for their clients.  Following the growing digital trend, video meetings will likely replace in-person and phone meetings. To help mediators face the changing needs of their practice we’ve thought about the most important considerations involved in adding these services and making them seamless for your clients:

Five things to keep in mind when adding video mediations to your practice: 

1. Are all participants at different locations or will at least one participant be coming to your location? If a participant will be with you in the office, consider whether they should still bring their own device so they can log onto the video conference individually, or do you have a camera system set-up where the entire conference room is in view? Otherwise you might have to sit very close to each other to appear on screen, which can be uncomfortable and awkward. Sitting close to each other might also give the impression of being on that person's “side”, since both of you are together on the other “side” of the camera, seemingly opposing the person who is out of the office on camera. Doing what you can to minimize this effect will keep your mediation in neutral territory.

2. Use a video conference app where you can share a screen. The new normal, even when in real life, is usually to view documents in some digital manner on your device, or to display them on a big screen so everyone in the room can view the document together. Printing every single document is becoming a rarity, especially when there are multiple people working on multiple drafts of the same document. Using a video conference app (such as Zoom) where you can share your screen (even better if you can share specific windows on your screen or apps you are running) makes it easier to go over documents or view websites collectively in the conference, instead of each person having to do it alone and at a difference pace. Remember that while some video apps allow screen sharing on the iPhone or other small device, it might be a bit trickier than on a computer. You can also email any documents you plan to go over ahead of time for the note-takers-by-hand so they can print what they want to and doodle away.

3. Double check your time-zones. Often, clients use video conferencing because someone lives far from any central meeting point, and the easiest way to get everyone together is via video. Make sure that everyone knows in what time-zone the video call is to occur and double check (maybe even triple check!) your calendar. Some calendars have a section where you can change the time-zone of a meeting, which can be equally as confusing as it is useful, depending on whether you have your time-zone settings active in your calendar. When in doubt, an email to participants to confirm the time-zone can get everyone on the same page.

4. Accessorize according to your environment. If there are other people around you and you are unable to be in a quiet room alone, use headphones and add a microphone when possible. Even the headphones that came with your smartphone likely have a microphone on the cable, making them super convenient when joining the video on your own device. You can also use an external microphone if you are using a computer to avoid unnecessary screaming into your screen. Depending on your surroundings, you may not need headphones or a microphone at all. Also if you are using a smaller device like your phone, a tripod or stand will keep you hands free and easily at “eye” level with other participants. Turn your video feed on to test the lighting and make sure people can see you!

5. Don’t be late to the party. Make sure your software is up to date and ready to use so you are not bogged down with updates or issues launching your video app. Just because you are virtual doesn’t mean you can slack on preparation.  Give yourself about 15 minutes to launch and deal with any update prompts, frozen screens, and hardware positioning, and then log in to your meeting. This routine will get you online a few minutes early, which is much better than being a few minutes late.


*Julie Tolek is an Associate at Skylark Law & Mediation, PC and runs her own practice, Think Pink Law.  Julie's practice includes family law & divorce representation, prenuptial agreements, mediation, firearms licensing & NFA trusts, estate planning & probate, and adoptions.

Tuesday, May 16, 2017

Will Quitting Your Job Reduce Child Support or Alimony?

It is a common refrain that support payments are usually more than the payor wants to pay and less than the recipient wants to receive.  This discrepancy can be extreme when the parties have been used to a particular lifestyle and the payor's income decreases significantly. It is also understandable that a recipient would be skeptical about reducing support if an income decrease for the payor was voluntary, e.g. quitting his or her job.

Those were the circumstances in the recent Appeals Court decision: Emery v. Sturtevant.  The husband/payor in the Emery case resigned from a high income position for "personal reasons" and after an extensive job search obtained a much lower paying job in the same line of work.  He then sought a reduction in his child support and alimony which the trial court dismissed indicating that they were attributing income to him at the job he left.

The Appeals Court overturned the trial court's decision and directed the lower court to calculate child support and alimony on the husband's actual income.  The discussion of the Appeals Court highlights why they thought the husband quitting his job in this case did warrant a reduction, while it might not in other cases:

Factors Considered by the Court in Allowing this Payor to Reduce his Support:

1. Leaving the job voluntarily matters, but what happened next matters more:

While the Appeals Court acknowledged that "[a]ttribution of income may be appropriate when a judge determines a career change is voluntary", they also noted that there is a second component of that review.  The second component is whether the party "thereafter failed to make reasonable efforts to secure comparable employment."

Examples given by the court of where this type of attribution might be appropriate were when a party takes an early retirement, or chooses to work in an unrelated field despite the availability of higher paying jobs.  The Appeals Court was therefore giving more weight to the availability of comparable employment in the same field than the fact that the husband left the first job voluntarily.  According to the Appeals Court, the "facts of this case are distinguishable from the voluntary career change line of cases."

2. Reasonable efforts inquiry is the controlling factor:

Since the husband had obtained a job in comparable employment, despite the much lower salary, the Appeals Court indicated that the lower court was required to consider whether the husband could have obtained a higher income in a similar position: "The reasonable efforts inquiry is critical, and is generally the determining factor in whether to affirm the attribution of income to a party based on his prior earning capacity."

The Appeals Court noted that the trial "judge did not make a specific finding regarding the reasonableness of the husband's efforts to secure employment" and they determined from the record that he had made such a reasonable effort.

The Appeals Court gave significant weight to  the “reasonable efforts” that the husband made to find replacement employment. While “reasonable effort” is certainly subjective, it is clear that the Appeals Court felt strongly that the efforts taken by the husband in this case were reasonable, despite the lower court's lack of finding on this issue (and presumably the lower court’s disagreement that the efforts were reasonably sufficient).

3. Attribution cannot be based on bad conduct:

The Appeals Court noted in footnote 15 that the trial judge gave weight to the husband's conduct, finding that the resignation was voluntary and the result of an affair.  However, the Appeals Court called this an "impermissible factor", directing lower courts to focus on the importance of the attribution factors only.

While this is strong direction to the lower court to focus on the reasonable efforts standard in future attribution cases, it seems unlikely that bad conduct will be ignored in these inquiries.  However, the Appeals Court has warned that the reasonable efforts to find replacement employment will weigh more heavily than any conduct that led up to the loss of the initial income .

Of Note - The Attribution Standard in Child Support v. Alimony

The Child Support Guidelines and the Alimony statute in Massachusetts have different language authorizing the "attribution of income":

Massachusetts Child Support Guidelines (as of 2013) state:
"Income may be attributed where a finding has been made that either party is capable of working and is unemployed or underemployed. The Court shall consider all relevant factors including without limitation the education, training, health, past employment history of the party, and the availability of employment at the attributed income level. The Court shall also consider the age, number, needs and care of the children covered by this order. If the Court makes a determination that either party is earning less than he or she could through reasonable effort, the Court should consider potential earning capacity rather than actual earnings in making its order."
"In determining the incomes of parties with respect to the issue of alimony, the court may attribute income to a party who is unemployed or underemployed."
Despite the different language, the Appeals Court in the Emery case noted that the standard they were applying was essentially the same:
"At the outset, we note that 'attribution of income in the alimony context is not different in rationale from that in the child support context.' C.D.L. v. M.M.L., 72 Mass. App. Ct. 146, 153 n.5 (2008). Accordingly, the discussion that follows applies to both alimony and child support."
While that may be the case, it is apparent that the parties were fighting over more than the husband's voluntary income change.  Both the wife and the husband's standard of living were going to be significantly affected by the husband's voluntary job change.  Some discussion in the case of a subsequent Contempt ruling suggests that if the attributed income order had stayed in place, the husband wouldn't have the ability to pay the full order anyway.

As with many of our posts, we are left wondering whether these parties would have been better served by a mediation process that allowed them both the opportunity to explore these practical realities, rather than the all-or-nothing see-saw of the trial court and appeals court.  This was their second trip to the appeals court and we hope they consider trying another process before they end up there a third time.


Monday, May 1, 2017

The Collaborative Outpost

Skylark Law & Mediation, PC will soon be moving to Southborough, Massachusetts and it's an opportunity for us and other like-minded professionals.  Our new home will be a building in downtown Southborough, called the Collaborative Outpost, which has a particular mission:

To Provide an Enjoyable Work Space for Collaboratively Minded Professionals

ACCOMPLISHING THE MISSION:

Justin Kelsey, who will also be a manager of the Collaborative Outpost, first opened his law firm with Matthew Trask as Kelsey & Trask, PC in 2008.  Since that time Kelsey & Trask, PC has evolved into Skylark Law & Mediation, PC, a leader in the resolution of family and probate disputes.  Justin is active in the mediation and collaborative law communities and has long dreamed of opening a shared work space that could expand on the model that has worked so well for Skylark (now a firm with five attorney/mediators).

The Collaborative Outpost is the realization of this dream, but not the end.  Our goal is to continue to push the frontiers of collaboration and find new ways to expand the reach of peaceful dispute resolution.  We believe that a shared workspace model is conducive to these goals by reducing the overhead for individual practitioners, while increasing their opportunity for learning and networking.

outpost. noun – an outlying or frontier settlement

The joint problem solving that is central to Collaborative Law and Mediation shares a common thread with the collaborative model of shared work spaces.  They are both outliers from the traditional way of doing things.  The Collaborative Outpost combines and embraces those differences from tradition as we seek to be on the frontier of our work in every way.

“It’s always been done that way” is no longer good enough.  

We hope the idea catches on and we are able to expand to additional locations.  Aside from the obvious play on words for a former post-office building, we envision this to be just our first building, a true Outpost on the frontier of a new working model for collaboratively-minded professionals.

If you're interested in joining us or know someone who is, we have an initial offer (expiring on May 12, 2017) to join us.  Click here to view the pricing of memberships and to learn more.


Sunday, April 30, 2017

How does a Divorce end? 😡, ☹️, or 🙂

There are three typical ways a divorce process can end: Reconciliation, Judgment, or Settlement.  Very few cases reconcile once a divorce process is started, and very few cases go all the way to Judgment.  In other words, most divorce cases settle, either before going to court, or at some time during the court process.  But settlement takes lots of different forms, and those different forms can have a significant impact on whether people feel good about their settlement or not.

Many clients and potential clients have asked me if there is any statistical research on outcomes for different processes, or even whether there is any data on whether a particular process is considered more "successful" than other options.  Unfortunately, I am not aware of any large scale study comparing Mediation, Collaborative Law, Arbitration, Self-Help Negotiation and Litigation, or even anything close to comprehensive.  There is some research comparing mediation and litigation, but not much else.

In the absence of analytical data, all I can share with clients and potential clients is my own experience working with divorcing clients.  I have helped people divorce through litigation, through negotiated settlement, through mediation, and through the collaborative law process.   I can state with certainty that in my experience clients who settled via mediation and collaborative law were more satisfied with their outcomes than my litigation clients, and it is the primary reason we have transitioned our primary practice areas to these dispute resolution processes.

I think one recent story about a Collaborative Divorce case I was involved in, highlights this difference:

I recently attended an uncontested divorce hearing with my client to present to the court a settlement agreement reached through the collaborative process, and something amazing happened after the hearing.  This was a very complicated case and the client had first entered my office three years before.  He knew from the start that he wanted to work outside of court to reach a settlement with his wife, but that doesn't mean it was easy.

The case involved very complicated assets, legally and financially complicated issues over inheritance, and many emotional ups-and-downs between the clients.  We had over 30 different revision versions of a separation agreement.  Despite all of that, we did reach a final settlement, and all this history made what happened after the hearing all the more surprising.

The Collaborative team involved numerous people throughout the process, including a financial adviser, a separation therapist, a collaborative business attorney, and two different divorce attorneys for the wife.  While it is typical to use other professionals to help throughout the Collaborative process, for over two years much of the work in this case was done with just the two attorneys and the spouses.  We had many settlement meetings and shared numerous lunches together.  We were adversaries but working towards a common goal, and all of that led up to the postscript to our hearing.

The hearing itself was uneventful and the Judge approved the agreement with a minimal amount of questions about its content.  She commended the parties on reaching agreement with such complicated issues involved.  Outside the courtroom we shook hands as is typical after reaching a settlement, and then something else happened.  My client reached out and hugged his wife's attorney.  She smiled, and surprised, she said "I don't think I've ever been hugged by an opposing party in a case before."  At the same time, her client did the same, reaching out and hugging me.  This wasn't my first time.

Though it is unusual, I have had other collaborative cases where the counsel and/or the clients ended the case with a hug.  This is the what can happen when you pay attention to how you divorce, and how you resolve conflict, as much or more than what you get or give in the divorce.  I can feel good (and so can my clients) about choosing to resolve conflict in a process that recognizes the humanity and dignity of every person involved.    I don't expect (or even want) a hug in all of my cases, but I can feel good about participating in a process where that is even a possibility.

Friday, April 7, 2017

7 Reasons to Consider a Prenup

Guest Post from Julie Tolek*

That magical moment that you have been waiting for has finally happened. Your significant other proposed and YOU SAID YES! Or you proposed and YOUR SIGNIFICANT OTHER SAID YES! You both have your wedding goggles on and all you can see are hearts and rainbows and as you start to plan the wedding, romance is in the air and the love is palpable. You set the date. Your friends and family then save the date. The flowers have been ordered. The wedding planner is pulling everything together.

And then one of you dares utter the “P” word.

Prenup.

PRENUP.

PRE. NUP.

The record stops and the world goes silent and time stops and you wonder if you really heard what you thought you heard.

PRE Nope. 

Or if you are the one who brought it up, you wonder if it’s too late to slur your words so they sound like something else.

“Honey, I said we need to CLEAN UP. I can’t BELIEVE you thought I said PRENUP!” 

And then you avoid eye contact. Everything is awkward and weird and you might both feel the romance of the entire process has been ruined.

It doesn’t have to be that way.

If you are getting married and one of you has brought up the dreaded “P” word (or you secretly want to but are afraid of being unromantic, or are afraid your partner will leave you, or don’t want to sound like a total scumbag) don’t panic just yet.

Before you freak out, consider the following seven things about prenups you probably hadn’t thought of:

1. There is a good time to talk about it, but it’s not the week before the wedding! Waiting until the last minute to talk about it is not a good idea. Generally, the sooner you bring it up, the better. Maybe a friend suggested a prenup when you told her you’re engaged. Maybe a family member has drilled it into your head ever since you can remember. Whenever the idea may have come up, the sooner it is discussed the better. A prenup will have greater legal validity if it was negotiated and signed a reasonable amount of time before the wedding. Springing a prenup with only a week before the wedding won’t allow either party to take time to process the request. Give yourselves enough time to think and go through the process together.

2. Think of it as part of planning your future together. As stereotypically unromantic as it sounds, when you strip the word “prenup” of the emotion associated with it, the prenup itself is just another tool to help you plan your future. Consider how valuable it is to be able to do this together. Humor me here – but discussing your prenup together might even bring you closer together as a team.  Like planning where you’ll live together, or discussing how you might raise children, the prenup discussion is about planning a life together thoughtfully.

3. Think of it like your other insurance policies you have – you probably won’t need it, but it’s nice to have just in case. Another positive side of prenups is that you get to plan your worst case scenario before you are in the middle of your worst case scenario. It is much easier to discuss planning for a possible separation while you are coming from a place of love, than it is to attempt discussion when you are coming from a place of anger or sadness during an actual separation process.  People don’t expect the worst-case scenarios to actually happen, but responsible people have a plan for a “just in case” moment. It is so much better to have a plan now, when you are in a good place together, just in case you need to discuss these topics later.

4. It protects your inheritance and business assets that you may not be focused on now, but may be important later on. Do you have your own business? A prenup can help protect against the liquidation of the business to pay for divorce or protect your ex-spouse from claiming the business in the divorce.  Non-monetary contributions during marriage or investments you’ve made using your own decision making skills are often overlooked. An attorney experienced in drafting prenups will help you brainstorm about these types of things – the things you might not think of as a big deal in the moment but which could become a big deal during a divorce.  This also includes things like retirement assets, licenses, and other things with sentimental value. If you put some thought into this before the unlikely situation where the you-know-what hits the fan, you don’t have to worry about ruminating over it later.

5. Set aside your own savings to use as you please. Typically, any money accumulated during the marriage is considered a marital asset, which means it belongs to both of you, no matter who made or saved the money. Marital assets are included in property division in the divorce. A prenup can give you the ability to set aside your own savings and have it not be considered marital property, so it is all yours!  At the very least, it’s a good idea to have a conversation about how you both intend to share money and what will be considered separate or joint before you get married.  People often have very different ideas about the handling of money and it can be a major stressor on a marriage.

6. Remarriage issues and other children. If this is a second marriage for either of you, a prenup can help allocate college expenses for children from a previous marriage and also make sure your inheritance is distributed according to your wishes.

7. Keeps you both in control. It is true that a majority of divorces settle without going to trial. However sometimes there are still many court hearings and the possibility of litigation. By having a prenup in place, you remain in control of what you want to happen if you get divorced, instead of a crap-shoot with the court. A prenup also gives your mediator or attorneys a framework from which to start the documents that will be submitted to the court for your divorce.

The bottom line is that there is a delicate balance between being true to yourself and to your partner, and nobody knows the two of you better than the two of you! By separating the emotional connotation of a prenup from the benefits of having one, both of you can plan together now to avoid future conflict later. And once it’s done you can focus on your special day and move forward knowing that if you can do a prenup together, you can probably tackle anything life will throw at you, together.


*Julie Tolek is an Associate at Skylark Law & Mediation, PC and runs her own practice, Think Pink Law.  Julie's practice includes family law & divorce representation, prenuptial agreements, mediation, firearms licensing & NFA trusts, estate planning & probate, and adoptions.

Wednesday, February 15, 2017

The New Massachusetts Standing Order on Parent Coordination: An Overview

Guest Post by Tony Pelusi*

Well it has finally come to be; earlier this month the Massachusetts Probate and Family Court issued Standing Order 1-17 setting forth the qualifications, standards of practice, and scope of authority for Massachusetts Parenting Coordinators (PC).  For the first time in the history of the Commonwealth this rule informs clients, attorneys, and judges what is necessary to avail themselves of the multitude of benefits of the PC process provides. Those who wish to access the full text of rule directly may click here.  What follows is a summary of the salient provisions for practitioners and parents.

First, Qualifications & Training:

For starters, a PC must be a licensed, experienced, and specially trained lawyer or mental health professional.   To qualify for appointment as a PC individuals must apply to the Court and be approved, demonstrating that they have completed at least

  • 30 hours of mediation training, 
  • 6 hours of training in intimate partner abuse and family violence, and
  • 35 hours of accredited specialty training on matters relevant to parenting, conflict resolution, problem solving and communication skills.
They must also carry at least $100,000.00 of professional liability insurance.  Once approved that individual is required to commit to a minimum of 6 hours of continuing education each year. When approved by the court, their name is placed on a list in no more than four counties where judges can appoint and, attorneys and client may choose to engage their services.

Next, the Protocol:

The standing order establishes uniform standards of practice for all parties to follow.  For example, once an individual is selected to serve, the clients, attorneys and PC must enter into a written stipulation that with judicial approval sets forth at least the following:

  • The PC is qualified and on the approved list;
  • There is a written service agreement signed by both parents and the PC;
  • The duties of the PC (including whether the parents agree that the PC shall have binding decision-making authority) are clearly established;
  • The scope of the PC’s authority;
  • The term of appointment – not to exceed two years;
  • The amount or rate of compensation to be paid, how the fees are to be allocated between the parents, and the maximum expenditure of each parent during the term of the engagement; and
  • The appointment is consistent with the best interests of the children.

Before entering the order or incorporating the agreement into a judgement the judge must inquire of the parents and determine that they fully understand the following:
"(i) if incorporated into an order, the agreement cannot be changed by the court without the filing of a motion and a showing of good cause and a showing that such change is in the best interests of the child or children; or  
(ii) if incorporated into a judgment, cannot be modified by the court without the filing of complaint for modification and a showing of a material change in circumstances and a showing that such modification is in the best interests of the child or children; and  
(iii) the parties have the right to access the court so that the court can determine fundamental issues of care and custody and/or parenting time and support, even where the parties have agreed to binding decision-making authority of the parenting coordinator; and  
(iv) the court will not draw any adverse inference if the party does not agree to use a parenting coordinator."
        Appointment of a PC even if the parties don't agree:

        .The standing order also sets forth similar provisions for the appointment of a PC without the agreement of the parties.  Here the court must first determine that the level of conflict between the parents is such that it warrants the appointment of a PC.   In addition to that which is set forth above, the court must also determine that:
        "(i) it is in the best interests of the child or children involved in the parenting plan; and  
        (ii) the parties have failed to successfully implement the parenting plan; or 
        (iii) the level of parental conflict is, or may become, detrimental to the child or children involved in the parenting plan."
        In circumstances such as this the parents have the right to notice and a hearing before any appointment.  And, if the matter is still pending, the appointment will be effective only so long as the matter is pending and will terminate upon entry of a judgement in the action.  Here, the court is also required to make written finding as to why the PC is being appointed, the full contact information for the PC, the duties of the PC,  the term of service of the PC, and how the fees and expenses of the PC are to be allocated between the parents.

        Most notably the rule states:
        "Notwithstanding any other provisions of this standing order, 'a judge may not require the parties to use the services of a parent[ing] coordinator if the order would require one or both parents to pay for the services without his or her consent.' Bower v. Bournay-Bower , 469 Mass. 690 (2014). If neither party agrees to pay to use the services of a parenting coordinator, the court is not permitted to enter an order or judgment requiring the use of a parenting coordinator. (emphasis added)"
        Only after these procedural protections have been met will the appointment become effective.

        The Scope of Authority & Process:

        Standing Order 1-17 also provides an extensive list of duties that the parents may agree are permissible for the PC to perform.  The primary function of every PC is to assist the parents to amicably resolve disputes and reach agreements about the implementation of and compliance with the order and parenting plan.  Some of the particular duties that a PC can perform in furtherance of this responsibility are to make minor changes or clarifications to the existing parenting plan, determinations concerning transitions of children between parents including date, time, place, and means of and responsibilities for transportation, education and day care, tutoring, after school programs, extracurricular and enrichment activities, children’s travel and passport, psychotherapy and mental health care, religious education and observances, and the role and contact with significant others.  PC’s may also support their clients in developing guidelines for appropriate communication between them, suggesting resources to assist parents, and as an objective observer identify and address certain patterns of behavior that negatively impact coparenting.

        Whenever parents come to a facilitated agreement that modifies and existing court order or judgement it is incumbent on the PC to advise them that such agreements are not enforceable unless and until it is submitted to the court for ratification.

        There are also specific duties that all PC’s are prohibited from performing:  PC are not permitted to communicate with the court unless by motion with service on all parties and counsel.  They may not testify as an expert witness, change legal or physical custody in a manner that impacts child support, offer legal advice, representation, therapy or counselling, delegate any portion of their responsibilities, or make binding decisions without the express permission to do so set forth in writing in the stipulation, court order or judgment, and PC service agreement.

        While the author of this article and his clients’ agree otherwise in writing, it is permissible for PC to testify in court as a fact witness if subpoenaed, to produce documents, and file a motion or complaint for the appointment of a GAL to assert or waive a child’s privilege, and/or to request and immediate hearing if a child is perceived to be in imminent physical or emotional danger.  And while not provided in this order most PC service agreements contain a clause that notifies parents’ that the PC reserves the right to report reasonable fears concerning an individual’s safety, child maltreatment and or abuse.

        PC’s are typically permitted access to all non-impounded case records.  This means that the judge must specifically authorize the PC to receive a copy of any GAL reports.  Parents may choose to and cannot be required by their PC to release confidential or privileged information.  PC’s are obligated to hold all information received during an engagement as confidential.  And, all information acquired by the PC during the course of the engagement may be disclosed to either or both parents, subject to the PC’s discretion and the law, and can be used as a basis for any decision.  Parents have the right to authorize the release to the PC all non-confidential or privileged information concerning their children. However, only a GAL appointed by the court can recommend the release of information from the child’s psychotherapist, counsellor, and/or social worker.

        The rule provides that it is an impermissible conflict of interest for a PC to serve in a dual or multiple capacity with their clients; for example, attorney, therapist, GAL, etc.

        In matters where domestic violence is a credible concern the court is obligated to offer parties the opportunity to consult with an attorney or domestic violence advocate of their choosing.  Further the court is prohibited from appointing a PC over the objection of a party in matters where domestic violence is a credible concern.

        How the PC process terminates:

        Next the order sets forth detailed and specific requirements and parameters for the replacement, extension of and/or early termination of a PC’s term of service.  The process is similar except that the standard differs depending on whether or not the matter is pending.  In each instance a parent must file with the court.  In either instance the court must that the requested action is in the best interests of the children.  If the matter is not pending, the court must find that there has been a material change in circumstances; if the matter is pending the court need only find good cause.  When the parents seek to extend the term of the PC they must seek court approval and the extended term is limited to 1 year which may be renewed as needed.   If both parents agree to replace one PC with another, again, their preference must be approved by the court and depending on the status of the action meet the standards set forth above.

        If the PC chooses to resign they must provide written notice sent by first class mail to each parent and all attorneys involved in the matter.  This notice must state the effective date of the resignation which cannot be less than 15 days after the date the notice is mailed.  Then the PC must file a copy of the resignation with the court at least seven days prior to its effective date.  The parents may thereafter agree on a replacement PC the appointment of which must be approved by the court as set forth in the order.

        The scope of duties of the PC may be modified by agreement of the parents in accordance with the procedures outlined above pertaining to extension and or early termination.  And to be enforceable the court must recognize this stipulation as an Order or part of an Agreement.


        *Tony Pelusi, Jr., JD, CPCC is a Boston area Lawyer, parenting coordinator, professional coach and relationship facilitator. He uses his skill and experience to help individuals, couples, families, and cohorts realize their full potential.  Learn more about Tony here.

        Tuesday, February 7, 2017

        Unvested Stock Options may be Income for Alimony Purposes - Ludwig v. Lamee-Ludwig

        In Hoegen v. Hoegen, the Massachusetts Appeals Court addressed whether it was a double dip to include restricted stock unit income in a child support order when those stocks had already been considered in the asset division.  The Appeals Court determined that the income should be included in the calculation, because the child support income definition is broad.  For more on that decision visit: Income: What's In and What's Out when Calculating Child Support?

        In contrast to the child support guidelines, Massachusetts law on alimony specifically excludes income from previously divided assets: "When issuing an order for alimony, the court shall exclude from its income calculation: (1) capital gains income and dividend and interest income which derive from assets equitably divided between the parties under section 34..." MGL c. 208 § 53  This means that the RSUs addressed in the Hoegen case would not be included for alimony calculations.  But what about stock options that were unvested at the time of divorce?

        Are future and unvested stock options included in calculating alimony?

        The Appeals Court addressed this question regarding the inclusion of unvested & future employee stock options for alimony calculations in Ludwig v. Lamee-Ludwig.  The short answer is that they can be included, and it is not a double dip because they were not part of the asset division in the divorce.

        In Ludwig, the trial judge concluded that "it would not constitute double counting if such income were included in determining the husband's alimony obligation to the wife" and that the options should be valued on a date "closest in time to entry of the original divorce judgment."  The husband appealed both issues and the Appeals Court agreed with the trial court.

        It is worth noting that the parties divorce was completed by agreement, leaving only these two issues to the judge's discretion.  They failed to reach agreement on these issues in their divorce agreement thereby leading to this additional litigation and appeal.  This highlights the importance and value of mediation and collaborative approaches, which place self-determination above the risk and expense of court resolution.

        Because of the application of the "time-rule" from the Bacanti case, the unvested options were not included in the asset division by the parties' agreement.  The appeals court noted that this avoids the injustice of a double-dip "because the contested shares were not part of the equitable distribution of assets; by operation of the time rule, they were assigned to and retained by the husband outright."  The husband relied on language in the Bacanti case indicating that unvested options "belong solely to the employee spouse."  However, the appeals court distinguished Bacanti as dealing only with asset division and not alimony obligations.

        The husband also appealed the timing of valuation, which the court chose as the date of the divorce, but the husband argues should have been the time of separation.  The appeals court defers to the discretion of the trial judge on this issue.

        Double Counting in the Dicta

        There is also an important "dicta" in this decision which might concern other payors resorting to litigation.  The Appeals Court noted that "[w]hile disfavored, double counting is not prohibited as a matter of law", thereby opening the door for other recipients to argue that a double dip may be appropriate even beyond the facts in Hoegen or Ludwig.



        Thursday, January 19, 2017

        Online Tool for Creating Parenting Plans

        It is our hope that all families find a way to resolve conflict peacefully.  This is especially true when children are involved.  Divorced or separated parenting has many complications and the first is just deciding how to share time with a child from two separate households.  Developing a schedule can result in a lot of tension, especially if parents have trouble picturing how this new schedule will interact with their work schedules and the schedules of their children.

        To help make this easier, we've created an online tool for creating parenting plans that is simple and easy to use:



        We encourage parents, regardless of the process they are using to divorce, to use this form to assist in evaluating and settling custody disputes. The form allows you to choose between the Model Parenting Plan proposals or customize your parenting plan over a four week period by clicking directly on the form.  When you click on a section of the calendar it switches between Mom and Dad, and if you choose to print the calendar directly from the web it results in this user-friendly printable format:
        We have also provided a gender-neutral version of this form for parents for whom that is more appropriate:


        The form is not intended to convey a preference for one type of parenting plan over another, but instead to recognize that every family is unique and should develop a plan that fits their needs.  Every block in the worksheet can be toggled back and forth between parents so they can easily see what different schedules will look like.  We hope that this tool is used by parents and practitioners to assist in reducing family conflict.

        If you have any questions about the form or want to provide us feedback please don't hesitate to e-mail us or call at 508.655.5980.


        Monday, January 16, 2017

        The Absurdity of Death & Divorce and the Importance of Professional Optimism

        I recently discovered Reply All, which is a podcast that explores interesting and amazing stories about the internet.  I've been listening to past episodes and today I discovered Episode #2: The Secret, Gruesome Internet For Doctors, which focuses on the existence of an app for doctors called Figure One.  Figure One is essentially an Instagram of gruesome photos of bodily diseases and injuries posted by doctors, potentially for educational purposes but mostly just for story sharing.  What's really interesting about this app is how normal it seems to doctors and how abnormal/gross/scary it is to everyone else.

        There are professions, like soldier or doctor, that deal with death and the fragility of life on such a regular basis that it becomes normal to them.  This creates a disconnect between what feels normal to a doctor and what feels normal to a patient.  The doctor has faced the absurdity of death in a way that the rest of us try to remain ignorant of.  Good doctors use empathy to bridge that gap.  They can't go back and unsee the things they've seen but they can try to understand that a patient doesn't have that same experience and doesn't want to have it.

        We, the pool of potential patients, survive by not worrying constantly about the 100% likelihood of our eventual demise.  That blind optimism about our own moment-to-moment immortality is actually very similar to how most people view (or want to view) relationships.  As a divorce mediator/attorney I deal constantly with the death of relationships.  Like a doctor who may see thousands of different ways that people can die, I spend my days dissecting the remains of broken relationships.  For many divorce attorneys and mediators that familiarity with the end of relationships becomes our normal and can callous us to the raw emotion and loss that people feel at the end of a relationship.

        This disconnect was highlighted for me recently when I heard about and visited the webpage for the Museum of Broken Relationships.  While many would see these exhibits as something sad or perhaps cathartic, my first reaction was that of a clinician, wondering the legal status of the personal property on display.  As I thought about it more, though, I was curious about what my clients would put in the museum.  Did I know any of them well enough to guess what the symbol of their break up would be for them?  Would asking them to think about that be helpful or too painful?

        The Secret, Gruesome, Internet for Doctors and the Museum of Broken Relationships could both be viewed as cold reminders that all things come to an end, and if that's all they were then the only interest would be from clinicians or those with a morbid curiosity.  However, there is a benefit to collecting reminders of pain in one place and putting them on display.  Anything can become normal if you deal with it enough, but reminding ourselves of that makes us a little uncomfortable.  It reminds us that we weren't always jaded.  Knowledge of the underbelly of life doesn't mean you have to lose the capacity for hope and empathy.  In fact, a practitioner who knows the worst that can happen and still has hope is the best possible model for a person in pain.

        When I teach mediation, I tell students that there are two important traits the mediator should bring to the mediation.  In addition to the skills a mediator must learn to help clients resolve their disputes, mediators must be curious and optimistic.  While curiosity helps the mediator get to the heart of the issue, optimism helps clients feel comfortable exposing their heart.  Even when people believe there is no way they can resolve their dispute, the mediator's belief that it can be resolved keeps the door open, and gives the clients hope.  Patients and clients might hire you for your experience or your knowledge, but they can't succeed without hope.
        "Darkness cannot drive out darkness: only light can do that. Hate cannot drive out hate: only love can do that.” - Martin Luther King, Jr.


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