WE HELP FAMILIES RESOLVE CONFLICT PEACEFULLY


Monday, September 24, 2018

Wanted: Diverse Divorce Practitioners. Why Diversity is Good for All of Us

Guest Post from Valerie Qian*
Cultural competence and sensitivity to the needs of diverse clients are an essential part of being an effective and successful professional.
My father-in-law recently underwent surgery to remove a kidney stone. It happened at a big hospital in New York City which, I understand, has an excellent urology department. As a first-generation immigrant from Shanghai, my father-in-law speaks limited English. After the surgery, while he was still slightly groggy from the anesthesia, a surgical resident who spoke some Chinese told him, without an interpreter, that the surgery went well and that 90% of the stone had been removed. A week later, my husband found out from the surgeon who actually performed the surgery that the stone was still there in its entirety and had not been removed, and my father-in-law needed a second surgery. My father-in-law went from thinking that the stone had been mostly removed, and the surgery successful – to being told that the surgery had not resulted in removal of the stone at all, and that he needed another surgery.

This was in spite of our being convinced, after learning the full story, that my father-in-law’s surgeon was an excellent surgeon and had made the best medical decisions under the circumstances during the surgery.  So how did the lines of communication get so crossed? 

There is an unspoken and unreasonable tendency to assume that professional services – such as getting your kidney stone removed, or negotiating a divorce – are somehow divorced from real life. We assume that the professional only needs to be someone who knows how to do their job – and that their cultural background, their “bedside manner,” their manner of relating to me and communicating with me as a human being, is irrelevant or not as important. This is a grossly inaccurate assumption – as much in the operating theater, as in the legal field. Cultural competence and sensitivity to the needs of diverse clients are an essential part of being an effective and successful professional.
History, religion, attitudes towards gender roles, norms about the purpose and role of the family, and the importance of individual happiness versus the collective good of a society, are all many-colored threads that run through a marriage 
– and tangle, when a marriage is broken up.
This is even more the case in the context of family law, where cultural competence may be crucial to a divorce practitioner’s ability to fully understand and advise a divorcing couple, or one of the parties to a divorce. No one can deny that every culture approaches marriage and family in very different ways. Even just looking at the wedding ceremony itself, this is abundantly clear. History, religion, attitudes towards men’s and women’s roles, norms about the purpose and role of the family, and the importance of individual happiness versus the collective good of a society, are all many-colored threads that run through a marriage – and tangle, when a marriage is broken up. Nobody is looking for divorce and nobody expects it to be pretty.

Especially when a couple seeking a divorce comes from a culture that holds marriage and family in high regard, it should be approached delicately. It’s a situation that calls for sensitivity, and cultural and ideological literacy.  This is why we need more diverse family law practitioners.

The importance of cultural understanding: Couples from diverse backgrounds need diverse family law mediators or attorneys, who may be better equipped to understand the cultural nuances operating between a divorcing couple if they share that cultural or ideological background. There may be unique stigmas faced by a divorcing couple from a specific cultural background: shame and ostracization; heightened incentives for privacy; and potentially many more players involved in the decision-making process than just the two parties.

Parties should not shortchange themselves nor discount the importance of having a mediator or attorney who understands the interplay of these many factors. Having just one culturally-sensitive collaborative attorney on a collaborative team for a divorcing couple could mean that the team as a whole – both attorneys, and the coach, and any other neutrals – approach a couple from a different cultural background with much more insight and sensitivity, too.

The importance of feeling understood:  We need diverse practitioners all the more in out-of-court processes such as collaborative law and mediation, where the parties to a dispute retain control of the decision-making process from beginning to end, and are not giving it up into the hands of a judge as they would in litigation. When so much elbow grease is required outside of the courtroom and from the parties themselves, a culturally-sensitive or literate mediator could mean the difference between settling a case and getting stuck at an impasse that exists because of some unspoken and ingrained cultural or ideological value that one or both of the parties subscribes to, but is unable to or does not ever think to share.  It could also mean the difference between a party feeling comfortable enough to trust and build rapport with the practitioner(s), an element that is key to effective dispute resolution.

Diversity strengthens the professions as a whole: Couples from all backgrounds can benefit from help from diverse family law practitioners. In out-of-court processes in particular, a diverse practitioner’s varied experiences and competency at adaptation, flexibility, and thinking outside the box (because they have been forced to, coming from a non-mainstream culture) can be invaluable to crafting out-of-the-box solutions to problems that might seem insurmountable when approached from a more traditional perspective.
In many ways our country has been taking a long, hard look at ourselves, and reevaluating whether it is really true that as a nation we hold certain truths to be self-evident – about race, race relations, cultural diversity, and the value and place of women in society, for example.
The family law bar needs diverse practitioners, so it can grow within itself and broaden its perspectives and approaches to diverse populations, and also sharpen its ability for out-of-the-box thinking. The family law bar should foster diverse and culturally-sensitive practitioners if it really desires to provide access to the law to a diverse population.

In many ways our country has been taking a long, hard look at ourselves, and reevaluating whether it is really true that as a nation we hold certain truths to be self-evident – about race, race relations, cultural diversity, and the value and place of women in society, for example. Our choices reflect and test who we really are. We should walk the talk – and show by who we foster and mentor among our colleagues, and by who we seek to hire to help us with our problems – that we really believe diversity matters. For my Shanghainese father-in-law who deserves to know what happened in his two-hour surgery – and for all of us.


*Valerie Qian has been an Associate at Skylark Law & Mediation, PC since February 2013.  Valerie was born in Wisconsin, grew up in Hong Kong, and has also lived in Shanghai, the United Kingdom, and Boston. She speaks semi-unembarrassing Spanish, Mandarin, and Cantonese. Valerie's practice focuses on divorce mediation, collaborative divorce, paternity, and modification, and she also represents youth, incarcerated and in the community, in the Middlesex Juvenile Court and the Massachusetts Department of Youth Services.

Saturday, September 8, 2018

Divorce Mediation Training Associates Prepares to Change Leadership

Divorce Mediation Training Associates has just announced that long-time trainers John Fiske and Diane Neumann will be stepping down and, starting in 2019, Justin Kelsey (of Skylark Law & Mediation, PC) and Ellen Waldorf (of eWaldorf Mediation) will be the new training team.

Justin has taught with John at the MCLE Family Mediation Workshop for many years, and Ellen has been a part of past DMTA trainings.  Both Ellen and Justin are excited at this opportunity to continue the excellent legacy of DMTA, and carry these trainings into the future.

Justin and Ellen will be participating in Diane and John's last DMTA training next month, starting on October 9.  Click here for more information or to register.

To read the full press release from DMTA visit here.

Tuesday, August 14, 2018

What Does it Mean to Call Yourself a Collaborative Lawyer?

It's not unusual to hear a lawyer describe themselves as collaborative.  I've also heard "I haven't taken the Collaborative Law training, but I certainly consider myself collaborative!"

But what do they mean by that?  Does it mean they offer collaborative law as an option to their clients, or just that they're willing to start a case in out-of-court negotiations and see where it leads?  Does it mean that they understand the collaborative law principles, or simply that they try to be civil with opposing counsel?

Civility and Collaboration are not the same thing.  In fact, many lawyers think of true "collaboration" as a dirty word.  I imagine them picturing the World War II signs labeling French civilians as "collaborators" and shuddering at the thought.  The problem with this mentality, especially in family law, is it means that you are thinking of the opposing party (and their counsel) as the enemy.  You might be civil to an enemy, but begrudgingly at best.  You might cooperate with an enemy for mutual self-interest, but you'll never trust them.  You'll never truly want to work together with an enemy.

Collaborative Law asks us to take a different approach.

The opposing party in a conflict is not my enemy.  They may have some competing interests, but in all likelihood they have many of the same goals and interests.  If you ask most parties in a conflict, they would both agree that they want to minimize lawyer fees, that they want to minimize the amount of time they spend in conflict, and that they want to have control over the outcome.  In a family case, they will almost always agree that the best interest of the children is a priority and that financial stability is also an important goal.

When we recognize that the joint goals often significantly outnumber and outweigh the areas of disagreement, we acknowledge the value of working together towards a mutually agreeable resolution of the conflict.  We see the value in collaboration, because we are not enemies just because we have a disagreement.  Even if that disagreement is painful and difficult, when we acknowledge the human dignity of the other side of a conflict, we invite a mutual respect and we make room for creativity and cooperation in joint problem solving.

Being a Collaborative lawyer is not just about civility.  That should be a given anyway.  Being a Collaborative lawyer is about shifting from a mindset where the other party or counsel is the problem to overcome, to a mindset where we define the disagreement as a joint problem and try to solve it together.

So if you want to call yourself collaborative, take the time to learn what it's really about.  Challenge yourself to set aside your misconceptions about problem solving, and offer to your clients an opportunity to find peaceful resolution instead of waging war and creating an enemy.

If I've piqued your interest or curiosity, there is an upcoming training in Salem, Massachusetts on September 20 and 21.  Learn more or register here.


Bringing Home the Bacon, and Frying It: The Appeals Court Defines Economic Partnership

Guest Post from Valerie Qian*

Does it make a difference for my legal rights if my spouse and I lived together before we got married?

The lawyerly answer, which I know is one most people can’t stand, is “it depends.” The Bortolotti v. Bortolotti case, a 1:28 unpublished decision that came down from the Appeals Court in April 2018, sheds some more light on this situation. The relevant statute, M.G.L. c. 208 §48, provides that the legal length of a marriage may be extended by periods of cohabitation if the parties had an “economic partnership” during these periods of cohabitation. The Bortolotti decision clarifies that “economic partnership” exists both in situations where both parties contribute income to the household, and in situations where one party may be economically dependent on the other. The decision further notes that when a judge exercises her discretion to exclude premarital assets from the marital estate, she should use a valuation of those assets at the time of the marriage.

The Appeals Court’s approach to the definition of “economic partnership” is broader than the lower court’s, and rightly takes a more broadminded approach to what this should mean. The commonsense definition of “partnership” suggests that both parties to a partnership contribute to it. But what qualifies as a “contribution” in a marriage/cohabitation partnership? The lower court seemed to only consider economic contributions in the form of one partner’s contributions of his income to the parties’ expenses during their cohabitation. Because the other partner did not contribute financially during their cohabitation, and appeared to be economically dependent on her male partner, the lower court did not believe there was a partnership.

The Appeals Court’s broader definition of “economic partnership” suggests that contribution to an economic marital partnership may involve more than simply depositing your biweekly paycheck into the joint bank account. While one party may be economically dependent on the other, she may still be considered a “partner” in an “economic partnership” that extends the legal length of the marriage for alimony purposes. The Appeals Court keeps its rationale for this broader definition of “economic partnership” grounded in rules of statutory interpretation and in case law, but the wider implications of this definition are clear and, I think, only right. Here in April 2018, we should be beyond the point where we believe that a stay-at-home wife (or husband) who is not bringing home the bacon is not contributing financially to the economic partnership of a marriage simply because she (or he) is only frying it. 

*Valerie Qian has been an Associate at Skylark Law & Mediation, PC since February 2013.  Valerie's practice includes family law & divorce representation, collaborative law and mediation, and juvenile representation.

Tuesday, July 24, 2018

Will the Alimony Tax Change Pressure Couples to Finalize their Divorce in 2018?

As we have previously covered here, The Tax Cuts & Jobs Act of 2017 Includes a Divorce “Penalty” for divorces that take place after December 31, 2018 if they involve alimony.  Prior to this act, and up until December 31, 2018, alimony was tax deductible to the payor and taxable income to the recipient, which allowed for a shifting of taxable income to a lower tax bracket.  If an agreement is entered prior to the end of 2018, and this benefit is preserved, then it continues into future years, even if the amount is later modified.  This has led many couples, already in the divorce process, to consider whether they want to work on finalizing their case prior to the end of 2018 to preserve this option.

Because some states, like Massachusetts, have waiting periods for finalizing a divorce, this law change raised a question:

Does the deadline of December 31, 2018 apply to the divorce being finalized, or just having a written agreement completed?

The answer to this question in Massachusetts, which has a 90-120 day waiting period for the finalization of a divorce after the Judgment of Divorce Nisi, could mean the difference between having to have an agreement done in August rather than December.  For more information about the timing of the divorce process in Massachusetts read our post: How to be Divorced by the End of the Year.

According to a recent post from local CPA firm, Gosule, Butkus & Jesson, LLP,
"The key for parties getting divorced in 2018 who want alimony to be deductible to the payer and taxable to the recipient is to have a written, signed, alimony agreement in place by December 31, 2018."
They note that the couple does not have to actually be legally separated or divorced for the alimony to be deductible as long as there is a "written separation agreement" with clear statements for support that otherwise meet the requirements for deductible alimony.  To read their entire rationale for this conclusion, complete with tax court citations, read their full article here: What Constitutes an Alimony Agreement?

Monday, July 23, 2018

Appeals Court Confirms Again, Verbal Agreements are not Good Enough to Modify Support

Guest Post from Julie Tolek*

In the recent case of Smith v. Smith (17-P-765), the Appeals court upheld a finding of not guilty of contempt of disobeying a court order to pay alimony, but vacated and remanded as to the retroactive modification of alimony made by the trial Judge due to the parties' verbal agreements, stating that retroactive modification of alimony requires findings “reflecting [the judge’s] consideration of all the factors mandated by” the statute. quoting Pierce v. Pierce, 455 Mass. 286 (2009).

After a divorce which included an order for the husband to pay alimony, the parties agreed among themselves that the husband would pay less than the amount of alimony in their separation agreement. Relying on this agreement, the husband contributed financially to various expenses for his emancipated children, including payment toward a wedding, down payments for two of his children’s houses, and payment toward liabilities. After receiving a letter from the Wife’s attorney, the husband began paying the originally agreed to amount. Subsequently, the wife filed a complaint for contempt for failure to pay alimony to collect the arrears.

The trial court found the husband not guilty of civil contempt as to the non-payment of alimony because although it did meet one requirement of contempt of “clear and unequivocal command” (not paying the amount of alimony required by the agreement), it did not meet the second requirement that the plaintiff show “clear and undoubted disobedience” by the husband, since he did make the reduced payments that he and his wife had agreed upon outside of the separation agreement. The Appeals court upheld this finding.

The trial court also retroactively (but not prospectively) modified alimony to bring it in line with the husband’s previous payments. The trial court based the modification on the same findings that led to the court to find the husband not guilty of contempt, however the Appeals court states that the two issues are separate and that “a party may not be in contempt, yet still owe alimony under the existing court order.” In reversing and remanding as to the modification, the Appeals court continues that although the retroactive modification is in the judge’s discretion, the judge must make findings “reflecting [the judge’s] consideration of all the factors mandated by G.L.c. 208, s. 34.” Pierce v. Pierce, 455 Mass. 286 (2009). Even prior to Pierce, case law has demonstrated that an alimony order can only be modified upon showing a material change in circumstances which involves looking at the statute at that time, the s. 34 factors, when evaluating the circumstances. Since the judge in this case did did not make findings addressing the current statute factors, the Appeals court reversed and remanded for an evaluation of the appropriate factors as well as if there has been a material change in circumstances since the divorce in relation to those factors.

As to the husband’s defenses of laches and estoppel, the Appeals court found, in accordance with case law, that laches is not a defense in a claim such as this, and that in any case where the elements of estoppel are analyzed, it should be done so relative to the required factors.

*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.

Friday, July 20, 2018

Accessibility with an Injury: The Problem with Sounding like your Mother

We recently published a post regarding the importance of making websites more accessible to all potential users where we provided some tips on improving accessibility.  Accessibility is not just an issue for those with long-term disabilities.  Access is often limited for individuals on a temporary basis due to an injury or surgery.  We asked Julie Tolek to write this follow-up post about her recent surgery and her experience with temporary Accessibility challenges.

Accessibility with an Injury: The Problem with Sounding like your Mother

a Guest Post from Julie Tolek*

Note: I use an iPhone, so this article references iPhone specific settings and apps that may or may not (but should) be available on other devices.

Earlier this year, I was scheduled to have shoulder surgery in March. I had been in pain and unable to use my arm properly for months, and when conservative treatments such as physical therapy and cortisone shots did nothing for the pain, I asked for an MRI. I knew in my heart of hearts that I had real damage to my shoulder but it wasn’t until the MRI confirmed that I had torn my labrum that I was able to set up the surgery.

One of the first things I asked my doctor was how soon will I be able to type, since getting back to work as soon as possible was important. I would be able to move my fingers just fine after the nerve block wore off, but I would not be able to move my arm for a very long time. With physical therapy, I would eventually get my range of motion back over a period of 6-9 months. But first I would have to wear a sling for 8 weeks.

Yikes!

As I started to think about the reality of how this situational temporary disability would affect my work and daily life, my first thought was that of gratitude - that my injury was repairable and that I would have use of my fingers, hand, and arm, all in due time. My next thought was how I was going to get through that time and still be able to use my arm as I could.

My top 3 observations about and experiences with accessibility while my arm was in a sling:

1. Phone numbers on non mobile-responsive websites: 
I am a website and marketing snob as it is, so visiting websites on my mobile device (I use an iPhone) only to find out that the site is not mobile responsive really aggravates me, especially because creating a mobile responsive site can usually be done very easily by clicking a checkbox or changing a setting on the back end. Specifically on mobile responsive sites, if there is a phone number on the site, usually you can tap it and your phone will ask if you want to call the number. Non mobile responsive sites do not have the phone number linked so you can just tap it, but instead force you to copy and paste the phone number into your actual phone app. I have really small hands, so it is often hard for me to use my iPhone one handed to do anything, much less copy and paste. With one arm in a sling, it becomes even more difficult, and annoying.
2. Getting to know Siri when you sound like your mom:
For the first time, I started to regularly use speech-to-text services (such as Siri) to dictate my writing. I had experimented with using Siri before and let me just say, we were not friends. Half the time she would get things right (setting alarms, asking the time, etc.), but when she didn’t or when she asked for clarification, she never understood what I was saying. By the time I used manual input to correct her or do what I was trying to do, it would have taken less time if I had fumbled my way through one handed to begin with. I decided that it was time to really try my best to use Siri as much as possible so we could become more proficient with communicating with each other. Text messages were hands down what I dictated the most, followed by emails. I am paranoid about sending the wrong email to the wrong person, so if I was starting an email from scratch, I would dictate it into notes first and send it manually later. This also gave me a chance to proofread and edit before sending. I would also dictate replies and save the drafts to send later.
Voice commands involving reading messages or creating calendar events using Siri proved to be not as useful. Often times, if I wanted Siri to read a new message for example, I had to unlock my phone with my fingers anyway.
Siri actually started to confuse my mom’s voice with mine! My mom stayed with me during the first part of my recovery. She also uses an iPhone and already used Siri much more than I did. I knew my mom and I sounded alike but when she would say, “Hey Siri!” To activate Siri, and both of our phones would reply, it was kind of weird! Her Siri would recognize my voice as well. What I found the most amusing was if one of us activated Siri, but the other's phone responded!
So I guess Siri is slightly less reliable when you and your mom sound alike.
3. Text to speech:
One of the most overlooked features on the iPhone is the ability to have it read things to you. Whether it is a webpage, a pdf document, or an email, there is another option other than asking Siri to read you something. In Settings > General > Accessibility, there are numerous settings to make the functions and use of the iPhone (or iPad) more accessible to those with disabilities. One of those settings allows Siri to read you the contents of the page by swiping three fingers down from the top of the screen. So if you cannot speak the command but you can see the screen, you can have Siri read to you manually. This setting is actually listed under Vision, in the Speech subcategory.
Once the setting is on and you use three fingers to swipe down from the top of the screen, Siri will begin reading automatically. You can adjust the speed from the little menu that pops up or set a default speed in the Speech settings. Although this method means I have to use my fingers, it is yet another (and sometimes more reliable) way to get Siri to read to me exactly what I want. If there is no readable content on the page, Siri will say so.
I have used this in the car as well when I wanted to be productive and have Siri read legal cases to me. She reads right through website extras and the stuff that you probably would not consider part of the main document, but generally you can follow her monologue.
Having limited use of my arm during my shoulder surgery recovery really got me to think about how these different ways of accessing information really make a difference for people who have disabilities, whether temporary or life long. It’s imperative that we remember, as humans, to be considerate of other people’s methods for seeing and receiving information, and communication, and that we strive to provide different ways to access and harness the same information.


*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.
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