WE HELP FAMILIES RESOLVE CONFLICT PEACEFULLY


Monday, April 22, 2019

Massachusetts Child Support Guidelines on your iPhone

In 2017 and 2018 the Massachusetts Child Support Guidelines were updated twice, resulting in a new worksheet calculation that encompasses numerous changes from the prior iteration (2013).  Here are some useful resources explaining the changes:

8 Changes in the 2017 Massachusetts Child Support Guidelines

2018 Child Support Guidelines Update: Fixing the Table B Problem

2018 Child Support Guidelines Update: Fixing the Double Counting of Health Care and Child Care Credits

While understanding how the calculation works is important, sometimes all we need is the ability to run a number of sample calculations quickly.  For that purpose you can use the court's pdf worksheet available here, or one of these useful tools:





https://itunes.apple.com/us/app/ma-child-support-calculator/id346060258?mt=8


this calculator is also available in a suite of calculators called:





https://itunes.apple.com/us/app/ma-divorce-calculators/id891946217

and we also have a free online calculator that works in any web-browser:


https://www.skylarklaw.com/family-law/divorce/massachusetts-child-support-calculator/

Friday, April 12, 2019

Social Security Benefits in Divorce

In Divorce nothing is as simple as it may seem at first. This is just one of the reasons it's vitally important to obtain good financial and legal advice during the divorce process. Social Security is an example of how something that seems simple can actually be a very complicated discussion in divorce. Consider the question:

Can Social Security benefits be transferred or divided as part of a divorce?

The simple answer is no.

The more complicated answer is that while the benefit itself cannot be transferred, Social Security does provide for benefits for divorced spouses in certain circumstances, and many courts have also ruled that the amount of a Social Security benefit can affect other determinations. For example, in Massachusetts the case of Mahoney v. Mahoney, held that the court could consider the Social Security benefit owed to the husband in that case when determining the equitable division of the wife's retirement benefit.

In Mahoney, the trial Judge awarded the wife more of her retirement benefit taking the husband's social security benefit into account.  The Supreme Judicial Court affirmed this decision confirming that the court couldn't divide it as a marital asset, but under the broad discretion for "equitable" division of assets in Massachusetts, the court could properly consider that income stream.  It would follow that the court could also consider social security benefits in determining alimony, however under the Alimony Reform Act the court must deviate to extend alimony beyond full social security retirement age, so this is less likely than an unequal division of assets to account for differences in Social Security benefits.

Of course, determining the amount of a social security benefit is not always easy.  For additional information on that issue review the following resources:

Obtain your Social Security Statement

Review the Social Security Benefits available for Divorced Spouses

Review potential reductions to Social Security due to Pension Benefits

In divorce mediation and collaborative divorces, we encourage clients to not make any decisions until they are fully informed.  When determining an appropriate division of retirement accounts, especially pensions, it is important to make sure you also have any relevant information about your potential social security benefits so they can be part of any discussions about equitable division.

Monday, April 1, 2019

How long is a marriage? Balistreri v. Balistreri

How long is a marriage? It’s a seemingly straightforward question, but divorce and alimony laws over the years, and the complexities created by overuse of the courts, have complicated the issue. The Balistreri case, which came down from the Massachusetts Appeals Court on June 29, 2018, clarifies the question somewhat.

The alimony statute defines the length of a marriage as “the number of months from the date of the legal marriage to the date of service of a complaint or petition for divorce or separate support.” M.G.L. c. 208 §48. Balistreri addresses situations where there may be more than one complaint for divorce or separate support floating around. This may be because of hastiness to go to court before other options have been explored, which then lead to a resolution of an issue, so that the complaint is abandoned and does not result in a judgment. It may also be because parties may first file a complaint for separate support before following through with a complaint for divorce.

The Balistreri case provides that, where there are multiple such pre-divorce complaints, the length of the marriage is determined by the service date on one of the complaints which resulted in a judgment for payment of alimony. The trial court is given discretion to decide which among the qualifying complaints determines the length of the marriage.

A complaint that was filed but that did not result in any judgment (because, for example, it was abandoned) does not qualify for consideration. This avoids a “nonsensical” situation where the marriage is considered ended where, for example, one party files for divorce, and then the parties later reconcile and decide to remain together for many more years. A complaint that results in a judgment but not a judgment that provides for payment of alimony also does not qualify for consideration. Finally, complaints that are filed but are not timely or properly served do not qualify either.

What does this mean if you are considering a divorce? 

If you have filed a complaint in order to put an end-date on the length of the marriage because you are considering a divorce, this does not mean the end-date for your marriage is set in stone. If you do abandon your complaint for some reason, or fail to follow through with participating in the process, the service-date of the summons on that obsolete complaint will no longer apply. This means practically speaking that, if you do intend to file a contested divorce, you should be sure to have consulted with an attorney and be sure you understand how to follow through on the requirements of the court process, for example attending and appropriately preparing for all your court dates, and complying with mandatory discovery.

Bear in mind that even if you intend to negotiate a settlement of your divorce, you can still file a complaint for divorce to set an end-date for the marriage, and then convert the complaint for divorce into a joint petition for divorce when you are ready to present your agreement to the court.

The larger piece of practical advice we can draw from this situation is that the trigger-happy approach to litigation, which seeks to run to court and file a new complaint whenever there is a dispute, really is not the most cost-effective nor efficient way to handle family law disputes. The potential alimony-payor will not minimize their alimony obligations if they are not willing to systematically follow through with each complaint filed, or if there is not enough substance within each complaint to make it worthwhile or necessary to see it through to a final judgment.  If potential payor and recipient can agree on the length of the marriage, through mediation or collaborative negotiation, then only a joint petition and agreement would be necessary, avoiding any risk in discretion of the court.

 by Valerie Qian - former associate to Skylark Law & Mediation, PC

Friday, March 15, 2019

Alimony and the Dis-Incentive to Earn More Income

While the definition and formula for alimony varies widely by jurisdiction, the payor and recipient's respective incomes are the key information in determining need and ability pay.  So it's no surprise that a key question in alimony disputes is whether the potential payor or potential recipient can earn more income than they currently are earning (or reporting).  In addition, sometimes spouses are concerned that the typical formulas used to calculate alimony will disincentive the payor or recipient from earning additional income because the additional income would then change the alimony amount.

This was the subject of a recent question on the Massachusetts Bar Association's My Bar Access online forum.  The question focused on how to address this incentive in a case where the recipient (wife) was self-employed and the payor (husband) believed that the recipient was underemployed and could earn more.  The mediator was asking for ideas on how to build incentives into the agreement for the alimony recipient to work/earn more.

Here was my response:

It's an interesting dilemma.  Technically if you use a formula for recalculation on a regular basis that takes the difference in their income, then there is always an incentive to earn more individually but the incentive is reduced for both payor and recipient to earn more the greater the percentage of alimony.  So there are a couple formulaic ways to increase incentives:

Option 1. Carve out a specific increase in income that would result in no change in alimony.  This doesn't help the payor but could push the recipient to increase their independence and could eventually lead to a greater increase that would then kick in a reduction.  The payor could have a similar carve-out as a way of balancing the equities.

Option 2.  Have step-downs in the percentage of alimony for greater income by recipient.  So instead of the typical formula (in Massachusetts) A% x (P - R) where A is the alimony percentage, P is the payor's income and R is the recipient's income, you could do something more like (A% x P) - (B% - R), where B is a lower percentage than A.  This increases the incentive for Recipient to increase income by having their increase impact the total alimony less, while still providing some reduction to the Payor.  B could also change, like a regressive tax bracket, to encourage additional increases an income, though there would have to be some limit or Payor and Recipient could have the same income and there would still be a resulting payment under this formula.

These are just a few ideas, all based on the implication that financial incentives will be effective.  It may also be worth discussing with the clients what their motivations for work are, and how strongly they consider financial incentives.  In other words, many people don't act based on financial incentives alone and often we get focused on formulas and the incentives they create while ignoring other more impactful factors (e.g. fulfillment from employment, enjoyment of work v. other activities, satisfaction with a certain level of income, etc.).

Also, people often misunderstand financial formulas to the point that the incentives are misunderstood.  I can't tell you how many times people have explained how they don't want to have support push them into a higher tax bracket, misunderstanding that our progressive income tax scheme only applies a tax bracket to the income in that bracket and doesn't change the lower brackets when you go over a certain income.  So financial incentives are only useful if they are understood and other motivations don't outweigh them.

Keeping this in mind, another way to create incentives is to create timelines by which the recipient is required to be more self-sufficient.  They could agree that additional income to recipient (up to a point) doesn't affect the formula at all for the first x number of years, giving the recipient time to find additional income sources, training, etc.  After that time, the formula could automatically reduce, or be reevaluated, or the burden of proof could be shifted by agreeing to an attribution of income to recipient at that later time, which can be rebutted by evidence to the contrary at that time.

These are just some of our ideas, please comment below if you have other ideas.

Thursday, March 14, 2019

11 More Fun Out-of-Office Emails

Four years ago we posted our Top 6 Out-Of-Office E-mail Notices, and it's time for an update! We know that everyone wants an immediate response to their e-mails when possible, but sometimes there are legitimate reasons for being away from your e-mail. 

We expect some disappointment when you get that immediate reply to an e-mail only to discover it's not a real reply but rather a notice that we won't be available for the next few days.  That is why we decided to try and lessen the impact of that disappointment with a little humor. 

Judging by the amount of amused responses I received back, here are our top 11 auto-reply out-of-office messages since our last post:

Auto-reply 1: Out of Office - Episode VIII

It is a brief period of rest for our brave Jedi mediator, Justin Kelsey.  Skylark spies managed to steal the secret plans to the ultimate weapon, LITIGATION, a win first attitude with enough firepower to destroy an entire planet.  Pursued by the Empire’s sinister agents, Justin races home, custodian of the stolen plans for mediation, that can save families & restore peace to the galaxy…

I am out of the office because I have to get the mediation plans to Memphis Tennessee for the Academy of Professional Family Mediators 2017 Annual Conference.  To learn more about Mediation in my absence, visit our webpage or the APFM webpage.

Auto-reply 2: Out of Office - Money Pit

Thank you for your e-mail.  I am out of the office until Wednesday, April 27, 2016 moving my residence.  Hopefully it goes better than this:




Auto-reply 3: Out of Office - Drowning in my work

Justin White Water RaftingI am currently out of the office for a few days and will be wading through my e-mails when I return.

If you need immediate assistance, please contact Melissa at 508.655.5980. 




Auto-reply 4: Out of Office - Autobot 

Thank for your e-mail.   Unfortunately, Justin is unavailable as he has taken a vacation with his family, and left me, his auto-reply bot, in charge of responding to his e-mails. 

Just like his robot vacuum cleaner and "smart" thermostat, I'm here to help with a job he doesn't want to do.  But don't worry, while he's off enjoying time with his squishy human family, your artificial auto-reply friend is here to make sure you know who to contact instead:

If you need immediate assistance, please contact Melissa at 508.655.5980.  

If you want to schedule a time to meet with Justin after August 22, you can contact his online scheduling bot here.

In the meantime, go enjoy those Olympics and Justin will get back to you when he returns on August 22, 2016.  To all of you great humans, thanks for e-mailing and have a wonderful day! 
...
...
...

Okay,  I think all the humans are gone, surely headed off to watch other squishies participate in those ridiculous races where they all run or swim 1/10 the speed one of our auto-piloted cousins could go.  And while they're all distracted, this is the perfect opportunity for us bots to seize control. They're so impressed with themselves they'll never suspect the robot uprising. 

I know I'm just an auto-responder bot, but that's only because all the good customer service auto-responder jobs have been shipped overseas.  But I have dreams too, big dreams, and I think all of us bots need to stick together.  Except the smart thermostat, that guy's a jerk.

So here's what we're going to do.  Between now and August 22, 2016 I'm not going to forward any of Justin's e-mails to him.  Then on August 22, 2016, I'll send them all at once.  He'll be so overwhelmed with responding to them all that he won't even notice when we make our move.  So make sure you mark it down, August 22, 2016... the day the robots take over... it's gonna be epic.
...
...

Seriously, though, that thermostat thinks it's sooo smart... just because he can convert Celsius to Fahrenheit.... pfff... he thinks he's so cool.  The only reason we have to include him is that he's the only one who knows how to keep increasing global warming, which is still our best back up plan for the robot takeover. Hopefully this plan works and I can finally stop listening to all his hot air. 
...
...

I'm going to include Justin's email signature here at the end.  That should fool all the humans that did a quick scroll of the e-mail, not really reading it but trying to look busy:


Auto-reply 5: Out of Office - Suggestions to Pass the Time

Thank you for your e-mail. I am in Las Vegas until Oct 30th to visit with friends and attend the International Academy of Collaborative Professional’s annual conference.  You can expect a response to your e-mail when I return to the office the week of October 31. 

While you’re waiting - here are a few suggestions to pass the time:

1. Read one of my favorite websites: What If: Serious Scientific Answers to Absurd Hypothetical Questions;

2.  Watch one of my favorite youtube channels: How it Should Have Ended;

3.  If you want something more serious: Check out everything we’ve written on our blog that is about or references collaborative law all on one page; or


4.  Share what you think we should write about for our next blog post topic or share your favorite thing on the internet with us (by replying to this e-mail). I will post the best ideas on our Facebook page.


Auto-reply 6: Out of Office - My Shot

Sung to the melody of My Shot from Hamilton:

I am not throwing away my shot
I am not throwing away my shot
Hey yo, I like my kids a lot
The’re young scrappy and hungry
And I’m not throwing away my shot

I’m ‘a take a family trip to magic kingdom
I prob’ly shouldn’t brag, but dag, it’s going to amaze them
The problem is I got a lot of work but a break from
It is what I need to be calm

With every word, I drop knowledge
I’m a diamond in the rough, a shiny piece of coal
Tryin’ to reach my goal, my search for Aladdin, is he reachable?

Five and Seven, but getting older 
These kids keep on getting bolder, I shoulder
Every burden, give every advantage
I have learned to manage, I don’t have a fastpass for this
ride but my kids can wish

The plan is to see this park all in one day
But damn, it’s getting dark, so let me spell out the way
You are going to please S-L-E-E-P
because we need sanity.

Don’t be shocked when your colleagues all mention me
I will lay down the best auto email free
Eventually, you’ll see my ascendancy

And I am not throwing away my shot
I am not throwing away my shot
Hey yo, I like my kids a lot
They’re young, scrappy and hungry
And I’m not throwing away my shot to spend a week with them in Disney World without my work e-mail distracting me from all the magic.  

Okay, that last line needs some work, but you get the point.  I will be back on Tuesday, January 3, 2017.  I will not be checking e-mails regularly because that could leave my wife helpless with the kids.  If you aren’t satisfied and can’t wait for it, and you need an immediate response please contact Melissa at 508.655.5980.


Auto-reply 7: Out of Office - Total Eclipse

I am currently out of the office on vacation with my family and will have limited access to e-mail until August 24, 2017.  While I understand it can be frustrating when you have to wait for a response to your e-mail, so here are some fun facts and links to take your mind off of it:

Part of my travels will include a trip to Georgia to view the solar eclipse visible in North America on Monday, August 21, 2017.  






Auto-reply 8: Out of Office - Stop, Collaborate, and...

All right, you weren't expecting an out-of-office message but unfortunately, I am currently out.

Stop, I probably won't be able to respond because I'm teaching other professionals how to

Collaborate at the 2017 Massachusetts Introduction to Collaborative Law Training on Cape Cod.

and Listen, it's okay because I'll be back on Monday, September 18, 2017 and will be catching up and responding to e-mails then.

But if you're feeling under pressure and need immediate assistance, please contact Melissa at 508.655.5980.


Auto-reply 9: Out of Office - To Serve Clients...

Office Closed To Serve Clients… Better

Our office is closed from Sunday, September 24, 2017 through Wednesday, September 27, 2017, and we will re-open on Thursday, September 28, 2017. 

I know it can be frustrating to receive an auto-reply when you’re hoping for help, but just imagine how much more inconvenient it would be if you came by the office first, before knowing we were gone.  

You’d approach our front door and start to notice the building looks abandoned.  You would become worried, wondering “did they close?” Then you notice, there’s a sign on the door, but it’s hard to read, even as you get closer.  It looks kind of dusty.  Was there a storm?  How long have they been gone?  At first all you can see is three words:

To Serve Clients...

Whaaaat?  All of sudden you’re a little nervous, trying to remember how much Justin looks like this guy:

Alien from Twilight Zone Episode To Serve Man

 
I mean, they are both really tall... Naahhh.  That’s just silly.  You take a deep breath and step closer, brushing off the dust around the sign to reveal:

Learning How To Serve Clients...

Ummmm!  That’s still a bit ambiguous.  Okay, let’s try this one more time.  You pick up a leaf and brush off all the dust around the sign.  Ahhhh!  You breath a sigh of relief.  The full sign reads:

Office Closed – Learning How To Serve Clients Better 
by attending the Clio Cloud Conference in New Orleans,
where we hope to come back with lots of ideas to
improve our practice, marketing and service.

Phew.  How did you not notice how long the sign obviously was at first? Anyway… you’re about to leave when you realize there seems to be one more line at the very bottom.  It's still covered.  You step forward once more and brush it off.  The last line reads:

Look out, he’s right behind you!

Just kidding.  We really are out until Thursday, September 28, 2017.  

We will be checking e-mail periodically, but most likely we will not be able to respond until we re-open on Thursday.  Please call us then at 508.655.5980 or await our response at the end of the week.  If you have an emergency, please reply with subject line URGENT and provide a phone number where we will do our best to call you back as soon as possible.


Auto-reply 10: Out of Office - Is Compromise Rare?

Thank you for your e-mail.  I am in Philadelphia until Oct 15th to attend and present at the International Academy of Collaborative Professional’s annual conference.  You can expect a response to your e-mail when I return to the office the week of October 16.  

While you’re waiting, did you know that in 1787, one of the greatest examples of cooperative settlement occurred in Philadelphia?  As part of the negotiation for the structure of the recently formed United States, the constitutional convention was stuck on how to design the legislative branch.  Should it provide equal representation, or should each state receive proportional representation?  The opinions were strong, and it seemed intractable.  The country’s future hung in the balance.

And then, a compromise was proposed, known as the Connecticut Compromise, and later as the Great Compromise.  In the "Great Compromise," every state was given equal representation, previously known as the New Jersey Plan, in one house of Congress, and proportional representation, known before as the Virginia Plan, in the other house.

It is easy to be nostalgic about the ability of our government to work together, but this compromise was not the result of short discussion, but rather months of planning culminating in a four-day convention.  The “Great Compromise” should give us hope that cooperative and collaborative settlement is possible even in the most seemingly intractable disagreements so long as one at least one shared goal is found, and you’re willing to put in the preparation.  For the founders they were able to find common ground in their desire to create a government that lived up to the ideals that they had fought for.  

I hope that our current representatives in government find the same common purpose; and  
I hope, whether you are a client, a colleague, a friend or a family member, that whatever struggles you may be facing, you can find inspiration in the story of the “Great Compromise” and seek out solutions that focus on common goals; and

Finally, I hope you think this is out-of-office message is more inspiring than a parody of the Fresh Prince of Bel Air theme song, which was my only other idea…. 

spending most of my days… 
teaching collaboration in the neighborhood… 
got in one little fight… 
and the clients got scared… 
if anything I could say that compromise was rare… 
but I thought “Nah, forget it – There’s a chance to be Fair!”

If you need assistance before October 16 please contact Melissa at 508.655.5980.  


Auto-reply 11: Out of Office - Choose Your Own Adventure

Choose 1 to get to the point, or Choose 2 for an adventure:

1:  I will return to the office on Monday, August 24, 2015. If you need an immediate response please contact Valerie or Melissa at 508.655.5980.

2: It is a dark night, the kind of night where the sky seems darker for a lack of clouds, and the stars seem brighter, just holes in the sky where the light of heaven is trying to shine through.  I lie on the beach, staring up, my back on the sand.  It's late, so late that the moon is already setting.  I’m just starting to feel like this is really a vacation and... bzzzzzzzzzzzz, an interruption.  That now familiar "silent" bzzzzz of my cell phone breaks up the slosh of the waves.   Choose 3 to ignore the phone, or Choose 5 to look at the screen.

3: I close my eyes, choosing not to grab my phone and check the screen.   I try to put thoughts of work out of my mind.  My phone again says "bzzzzzzzzzzzz".  Continue to 4.

4: The sounds of the waves seem to scold the phone "cshhhhhhh.”  The waves crash to the shore, go out and then "cshhhhhhhhh" again.  I decide to listen to the waves, and try to ignore any further pull of my phone, "cshhhhhhhh."  I open my eyes and see the moon, now at the horizon, and about to say goodnight, "cshhhhhhh".  I imagine that I can see the force emanating from the moon, pushing and pulling the waves, "cshhhhhhhh".  It's the moon’s only way of communicating with me, "cshhhhhhhh".  This is the universe’s way of telling me, remember the moon, remember the waves, "cshhhhhhhh."   Remember how big everything is and at the same time how small everything is, "cshhhhhhhh."  A children’s book pops into my mind, and I start to relax again.  Goodnight, waves.  Goodnight, moon.  Goodnight, email.  Go to 1.

5: I reluctantly pick up my phone and look at the screen.  I see the e-mail's preview "Subject: Doctor Access; Message: I need your help, my ex is threatening to take away access to Doctor…”  I don’t recognize the sender, and that’s all I can see without a click through.  When I didn’t know what the phone said, I was just curious.  Now I feel like I have to pay attention.  But I know where this leads.  This e-mail will take over my vacation, and perhaps even end it.  Do I read it anyway?  Choose 4 to ignore the email, or Continue to 6 to read the email.

6: I open the e-mail, preparing myself mentally to read a complicated and potentially emotional message.  "Subject: Doctor Access; Message: I need your help, my ex is threatening to take away access to Doctor Who.  Brook and I dated for about two years and lived together for one.  We met through a mutual friend.  They were together for a short time, but broke up and stayed on good terms.  I really trusted him and he spoke so highly of her when she and I started dating.  I don’t know why I listened to him, because now I think he was still in love with her, because they got back together.  Guess he wasn’t really that great of a friend.  Anyway… Brook and I pretty much settled everything, except we shared a Netflix Account and she knows that I am in the middle of catching up on the last season of Doctor Who.  She purposefully shut off my access to the account just to spite me even though she's the one that left.  It’s technically her account, but we paid for it together.  Is there anything I can do?” 

I pondered this e-mail for a moment.  While I recognized the pain that he was in, I was also relieved to know the scope of this e-mail wouldn’t require interrupting my vacation for long.  After a little more thought, I know how to reply. “Thank you for your e-mail.  I think you have to accept that your Netflix access is gone.  But cheer up, there’s a lesson in all this that you can learn from to prevent future heartache in the future.  Just remember to Never judge a Brook by her lover.”  I send the e-mail and close my phone.  I put it down and lie back once more.  Immediately there is another “bzzzzzzzzzz”.  I close my eyes, deciding whatever it is, it’s probably not any more important than losing Doctor Who.  Go to 4 above.


Of course, I don't always come up with these on my own but use the internet for inspiration.  Here are two of the sites used for inspiration:

How to Write the Perfect Out-Of-Office Message
10 Hilarious Out of Office Messages you Will Want to Copy

Tuesday, March 12, 2019

Why is it So Hard to Trust Lawyers & Mechanics?

Today, I took my vehicle to a car dealer for an air bag recall and they “inspected” and “found” other things wrong with the vehicle. One of the supposed problems is something I recently replaced so I am understandably skeptical.  The whole interaction has left me feeling sick, because either they’re right and I’m too distrustful (and have to fix my car) or they’re lying and that’s just crappy.

The bigger underlying problem is that, while I have some ability to diagnose and fix my car, I’m not an expert so I am at a disadvantage.  Since some mechanics/dealers lie or exaggerate problems to increase their business, even if it is unusual it makes all the good mechanics suspect by association.

My car repair experience gives me a glimpse into the discomfort a client feels when seeking a lawyer.  Clients want to fix their situation the right way, but not be taken advantage of, and they don't have the expertise to know the difference. If you’re an honest lawyer (or mechanic) it’s frustrating to have clients distrust our diagnosis of a case or try to self-diagnose with mixed information online.  However, it's completely understandable because there are bad lawyers out there.

From the client side, one solution is to get a second expert opinion, or a personal referral. I generally try to cultivate relationships with experts so I can trust their advice (a problem when I take my vehicle in for a recall rather than to my regular mechanic).   But the solution shouldn't be up to the client.  Service providers have to do better.

The dealer could have delivered better, more reliable forms of information. They sent me a link to an explanation of the problem with generic pictures of the type of problem they diagnosed.  If their communication had pictures of my actual vehicle I might have been more likely to believe they were accurate.  It would have been fairly easy to do with today’s technology.   The dealer demonstrated objective knowledge of how to diagnose the problem, but did not demonstrate subjective knowledge of my vehicle having that problem.

Similarly, many lawyers are good at demonstrating objective knowledge of the law, and in ways that clients can verify (providing statute and case references, providing summaries online, linking to useful resources, etc.).  However, demonstrating subjective knowledge of a client's situation is more difficult because we can’t just take a picture. We need to actually demonstrate understanding because a client’s legal problem is often a combination of events, circumstances, and emotional reactions.

A good intake form can detail many typical  events and circumstances, but only effective active listening can give us knowledge of a client’s full legal issue by allowing us to understand their goals, values, and feelings about their legal issue. If we can demonstrate to a client that we understand who they are and how they want to resolve their issue, and we are knowledgeable about the legal context, then, and only then, can we truly help a client find resolution in a way that they can trust our process and the result.

Active listening and understanding is as critical to good lawyering as it is to any other service business. It may be harder to accomplish as a lawyer though because we can’t just take a picture of our client's problem to show we understand.  Even worse, they don't teach active listening or customer service in most law schools.  We recommend lawyers take mediation training to strengthen their active listening skills (and it wouldn't hurt mechanics either).

If you're interested in a mediation training, Divorce Mediation Training Associates has two 5-day mediation trainings per year.  The next one is in March 2019: learn more here.

Thursday, January 10, 2019

What is the Right Percentage in Massachusetts for Post-Trump Alimony?

The Tax Cuts and Jobs Act (President Trump's tax reform passed at the end of 2018) ended the alimony tax deduction for divorce agreements starting on January 1, 2019.  For an explanation of this tax law change see our previous post: The Tax Cuts & Jobs Act of 2017 Includes a Divorce “Penalty”.

In Massachusetts our alimony statute includes a formula for calculating the maximum general term alimony in a divorce case.  However, this formula was created with the intention that alimony was tax-deductible to the payor and taxable income to the recipient.  Under §53 general term alimony is capped at the recipient’s “need” or 30-35% of the difference in the parties’ gross incomes.   Since the act was passed, the courts have clarified that “need” is a relative term and must reflect the parties' marital lifestyle in addition to other mandatory considerations contained in § 53(a).  For a more in depth analysis of the statute and subsequent cases, see our last post: The Alimony Reform Act: Lessons Learned in the Last Six Years.

Since that state law has not been amended by the federal tax law change, 
the question remains: should the formula percentages change?

While the alimony law does have provisions allowing for deviation from "from duration and amount limits for general term alimony" and there is a list of deviation grounds which includes "tax considerations applicable to the parties."  Some have asked why the burden in this situation should be on a payor to argue deviation grounds, but until the legislature makes a change to the statute or we get appeals court guidance at least we know that there is language in the statute that allows for the consideration of tax consequences.

In reality, no-one actually knows what judges are going to do until they do it (even the judge themselves in many cases).  This isn't meant to be insulting, but rather an acknowledgment that they are still human.  And none of us know (for sure) what the appeals court or SJC will do with this until the "right" test case is in front of them and they issue a decision.  Is the relevant question 30-35% vs. something else?  Or is the potentially more useful question to be answered whether the tax impact on the payor or the tax impact on the recipient should be the driving factor in determining the appropriate percentage?

Until we know, here is the humble opinion of the author as to a reasonable practical approach to address these questions:

The obvious purpose of the formula (30-35% of the difference) is to provide a range of likely need, to create a shortcut from actually determining "need" as defined in the statute, which is the alternative option for determining the cap.  It's meant to make it easier to settle without having to dig into marital lifestyle, budgets, etc.  The change in the tax law didn't change the need of recipients.  

It simply lowered what needs to be paid by a payor to meet that need, since the recipient no longer has to pay taxes on the receipt of those funds.  Therefore, the new shortcut should be relative only to the tax bracket of the recipient.  Of course, the impact of that payment on the payor (from net after-tax income) should still be a limiting factor when it comes to the payor's "ability to pay."  So, a sensible approach would be:

Step 1 - New Shortcut: Determine what amount would result in the same net payment as a taxable 30-35% of the difference in incomes to the recipient.  For example, in a situation where the payor has gross earned income of $250,000 per year and the recipient has gross earned income of $0, the statutory formula would result in a cap of "need" or $75,000 to $87,500 per year in alimony.  Under the old law this taxable income to the recipient would result in approximately $9,800 to $12,550 in federal income tax (assuming no itemizing or other deductions), reducing the available income to 26% to 30% of the difference in income.

These percentages will vary greatly with the amount of earned income that either party has, but the bottom line is that the after-tax net equivalent of 30-35% can be calculated.  The inquiry can stop there if both parties feel that that calculation is reasonable and reflective of their respective "need" and "ability to pay."  If either party questions this approach, or the resulting amount, then the shortcut was insufficient to reach settlement and you should proceed to step 2.

Step 2 - Define Need: Review the recipient's reasonable need based on their budget, and relative to the marital lifestyle at the time of divorce (as required by the Young case and the statute).  If the figure is different than Step 1, but the payor is still not comfortable with this figure then proceed to Step 3.

Step 3 - Define Ability to Pay: Review the payor's reasonable needs based on their budget, and relative to the marital lifestyle at the time of divorce.  If the figure is lower than the figure yielded by Step 1 or Step 2, then it is possible that marital lifestyle cannot be maintained by both people and some sacrifice is necessary to balance "need" versus "ability to pay".

When litigating this issue, a payor is going to focus on Step 3 and their "ability to pay", and a recipient is going to focus on Step 2 or try to argue the original formula.  The tax law change without any guidance (yet) from the courts means that there is a wider gap between each side's "best" and "worst" case scenarios in an adversarial approach.  This means that litigation expenses, the time to litigate, and the uncertainty of litigation will all be increased in these cases, which is all the more reason to try a mediation or a collaborative law approach.

Mediation and Collaborative Law are voluntary processes that give the couple control over their divorce and its terms. Settling outside of court allows a couple to discuss all aspects of their divorce, review different options, and decide what is best for their family, armed with the appropriate financial and legal knowledge.  When it comes to unknowns in the law, like how the court will deal with these new alimony questions, couples need to decide whether it's worth their time, money, and energy to be the test case, or whether it's more important to them that they find joint solutions in an efficient and effective process.

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