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.

Tuesday, December 11, 2018

The Alimony Reform Act: Lessons Learned in the Last Six Years

by Valerie Qian & Justin L. Kelsey

The Alimony Reform Act of 2011 defined what alimony is and how it should work in much greater detail than the prior law.  The Alimony Reform Act, 2011 Mass. Acts ch. 124. However, it also left many questions unanswered. In the six years since the Act became effective, on March 1, 2012, the courts have slowly been further clarifying, and in some cases arguably undercutting, the Act.  In this article, we will summarize the provisions of the Act and note the court cases that have affected the language of those sections.

Alimony: What is it? 

Alimony is defined in the Act as ' the payment of support from a spouse, who has the ability to pay, to a spouse in need of support for a reasonable length of time, under a court order.' Mass. Gen. Laws ch. 208 §48 (2012) [hereinafter §48].

Since March 2012, the courts have made clear that this is how the law has defined alimony even prior to the Act, and the Act did not change this (except for the addition of “reasonable length of time”).  
“The Act altered neither the fundamental purpose nor the basic definition of alimony: ‘the payment of support from a spouse, who has the ability to pay, to a spouse in need of support.’ G. L. c. 208, § 48.” Hassey v. Hassey, 85 Mass. App. Ct. 518, 522, 2014.

The federal definition of alimony is a little different.  In order to qualify for tax deductibility to the payor, the Internal Revenue Code requires that the alimony payment must be in cash, received as a result of a divorce instrument executed prior to December 31, 2018, while the payor and payee spouse are not living in the same household, and where the payment terminates upon the death of the recipient spouse. 26 U.S. Code §71 (2018).  See also The Tax Cut and Jobs Act, Pub. L. No. 115-97 (2017, removing the alimony deduction for agreements entered after December 31, 2018).

What are the types of alimony?

The Act separates alimony into four different types, with distinct purposes. The type of alimony that most cases will have is dubbed “general term alimony” and refers to any type of support paid by one ex-spouse to another ex-spouse who is “economically dependent.” §48, supra.  Section 4 of the Act, which was not incorporated into the General Laws, indicates that prior alimony awards “shall be deemed general term alimony.” The Alimony Reform Act, supra at §4.

The Act also creates a form of alimony called “rehabilitative alimony,” which is paid to an ex-spouse who is anticipated to become economically independent “by a predicted time.” §48, supra.   The “predicted time” need not be a specific date, or even a specific expected future event of self-sufficiency such as graduation from an educational program, for example, so long as there is a general expectation that the recipient should be able to find reemployment in the future. Zaleski v. Zaleski, 469 Mass. 230, 234 (2013). 

Two other forms of alimony created by the Act apply only to marriages of five or fewer years: reimbursement alimony which is used to reimburse a spouse for contributions to the marriage; and transitional alimony which is used to allow a spouse to transition to a new location or lifestyle. §48, supra.

The Act requires that to determine the appropriate form, duration, and amount of support the court must consider:

“the length of the marriage; age of the parties; health of the parties; income, employment and employability of both parties, including employability through reasonable diligence and additional training, if necessary; economic and non-economic contribution of both parties to the marriage; marital lifestyle; ability of each party to maintain the marital lifestyle; lost economic opportunity as a result of the marriage; and such other factors as the court considers relevant and material.” Mass. Gen. Laws ch. 208 §53 (2012) [hereinafter §53].

A judge must consider these mandatory factors when deciding the form of alimony, and should not consider any “irrelevant factors,” but has broad discretion in this evaluation so long as “the record indicate[s] clearly that the judge considered all the mandatory factors.”  Zaleski, supra at 236.

What is the correct amount of alimony?

The Act provides guidance for setting alimony orders by giving divorcing parties and attorneys a formula to calculate the maximum amount of alimony that can be paid by one former spouse to another.  §53, supra at (b).  Alimony, except for reimbursement alimony, is capped at the recipient’s “need” or 30-35% of the difference in the parties’ gross incomes.  Id.

The Act provides that “gross income” for alimony purposes should be defined in the same way it is defined in the Massachusetts Child Support Guidelines, subject to certain limitations.  Id.  This means that bonuses are included in a party’s income for alimony purposes, as the Zaleski case confirms.  Zaleski, supra at 243.  There are differences, though. For example, distinguishing the income used for alimony from child support, the Vedensky case indicates that if a payor spouse obtains a new second job after the initial order of alimony, there is a presumption against including this new job in a future Modification of the original alimony order.  Vedensky v. Vedensky, 86 Mass. App. Ct. 768, 778 (2014).

Despite a temptation to use the Act’s formula in all alimony cases, the Hassey case makes clear that alimony is still defined by the payor’s ability to pay and the recipient’s need for financial support:

“Although the Act creates express guidelines to aid judges in fashioning alimony orders, it does not alter the principle that the central issue relevant to a financial award is the dependent spouse's ‘need for support and maintenance in relationship to the respective financial circumstances of the parties.’ Partridge v. Partridge, 14 Mass. App. Ct. 918 , 919 (1982).” Hassey, supra at 524.

It is not appropriate to simply apply the formula for the cap and use that formula in all situations as a starting point.  Need can obviously be less than the formula cap, and in Hassey, the Appeals Court noted that need can also exceed the formula and an amount greater than 35% would be permissible “if based on a specific determination of the recipient’s need…”  Id. at 526.   Of course, this leads to the question:

What is “need?”

Since the Act, 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) (as quoted above).  Zaleski, supra at 243. However, the courts have also made clear that judges have significant discretion in setting orders. In the Zaleski case, for example, the Supreme Judicial Court allowed a lower court to find that the parties overspent during their marriage and therefore their “need” was less than the lifestyle they had enjoyed during the marriage. Id.

Court cases since 2012 have also clarified that “marital lifestyle” need is tied to the time-period of the marriage.  If the parties have been separated for a period of time prior to the filing of a divorce action, the lifestyle of the recipient spouse during the marriage, and not just during the period of separation, should be a factor in determining the amount of alimony.  Steele v Steele, 85 Mass. App. Ct. 1113 (2014, Rule 1:28 decision).  Need is not defined by the standard of living a spouse would have enjoyed in the future had he/she remained married to the payor spouse. Young v. Young, 478 Mass. 1, 3 (2017).

What is the correct length of alimony?

Under the Act, rehabilitative alimony presumptively ends in five years, the remarriage of the recipient, or the death of either spouse.  Mass. Gen. Laws ch. 208 §50 (2012). General term alimony ends upon the remarriage of the recipient spouse or death of either party, and its duration is capped at certain percentages of the length of the parties’ marriage:

• 50% of the length of the marriage for a marriage of 5 years or less
• 60% of the length of the marriage for a marriage of 5 – 10 years
• 70% of the length of the marriage for a marriage of 10 – 15 years
• 80% of the length of the marriage for a marriage of 15 – 20 years, and 
• indefinite duration for a marriage of more than 20 years.  Mass. Gen. Laws ch. 208 §49(a-c) [hereinafter §49].

General term alimony orders set under the Act also presumptively end upon the payor reaching full Social Security retirement age.  Id. at §(f).   The courts have the discretion to order alimony beyond the payor’s social security retirement age, but under one of the first 1:28 decisions released after the Act, the Appeals Court directed that the lower court must clearly explain in writing the reason for ordering alimony past social security retirement age.  Green v. Green, 84 Mass. App. Ct. 1109 (2013, Rule 1:28 decision).

Since the Act, the courts have clarified that alimony that is ordered on a temporary basis under a temporary court order does not count towards the maximum duration of general term alimony that a payor may have to pay under the statute. Holmes v. Holmes, 467 Mass. 653, 659 (2014).  Under the Holmes case, the court also noted that the duration limits are maximums, and the court has the discretion to order alimony for a shorter duration of time than the maximum duration allowed under the statute. Id. at 660.

The Act also creates a presumption that alimony will be suspended, reduced, or terminated when a recipient spouse has been sharing a common household for three or more months with someone and lists factors that the court should consider in determining how the relationship might affect the alimony order. §49, supra at (f). 

When can an alimony order be modified? 

Under the Act, the court can modify the duration or amount of alimony “upon a material change of circumstances warranting modification,” “unless the payor and recipient agree otherwise.” Id. at (e).  The Act makes clear that existing orders that were non-modifiable or survived still cannot be modified, and this has been reaffirmed by the Appeals Court. Lalchandani v. Roddy, 86 Mass. App. Ct. 819, 822 (2015).

A “material change of circumstances” is not defined specifically in the statute, and is case specific.  For example, even in a case where the recipient’s income, or ability to earn income, had increased, the court found that a material change could still be sufficient where the recipient’s need at the time of the modification had increased and was greater than her income, and the payor had increased assets, decreased expenses and was able to pay the additional support.  Flor v. Flor, 92 Mass. App. Ct. 360, 364 (2017).

In the same case, the court found that a child’s emancipation and the resulting ending of child support could qualify as a change in circumstances. Id. This was the case even though a child’s reaching “adulthood” is an event that was obviously anticipated at the time of the divorce, but in this case not specifically identified in the Agreement as qualifying as a change in circumstances.  Id.

Because the determination of what qualifies as a “material change” is vague, some parties and courts may want to avoid potential returns to court by incorporating a self-modifying order that changes with the parties’ incomes.  In the Hassey case, the Appeals Court addressed whether a self-modifying order created by a judge was permissible under the Act. Hassey, supra. The self-modifying provision in Hassey was vacated because:

1) it set up future modifications of alimony that would not be based on a judge’s finding that the recipient’s need, and the payor’s ability to pay, had both increased at the time of each modification, and 
2) it only required the payor to disclose his income going forward, and did not take the recipient’s income into consideration. Id. at 527-528.

The Appeals Court took care not to indicate that all self-modifying orders are prohibited. Id. Parties who wish to use self-modifying provisions in their Agreements may do so, but should be careful to ensure that whatever mechanisms they put in place to modify alimony in the future give due consideration to what future need and ability to pay may be, and provide for possible modification if the circumstances change so that the self-modifying provisions are no longer viable.  This requires careful and thoughtful drafting.

Do the same rules for modification apply to pre-Act cases?

Section 4 of the Act, which was not incorporated into the General Laws, indicates that the changes to the statute are not sufficient, by themselves, to warrant a material change of circumstances as to the modification of amount.  The Alimony Reform Act, supra at §4.  However, “existing alimony judgments that exceed the durational limits under section 49 of said chapter 208 shall be deemed a material change of circumstance that warrant modification.”  Id.

This means that, in a case with a merged pre-Act agreement for alimony in which the only change in circumstance is the passage of the Act itself, only the duration of that award can be modified and only if the award exceeds the percentage durational limits contained in §49(b).  Id.

This ability to modify the duration of pre-Act awards does not apply to the other duration endpoints in the statute.  The SJC ruled that pre-Act alimony awards cannot be modified due to the payor reaching full retirement age if the original agreement provided for a later termination date.  Chin v. Merriot, 470 Mass. 527 (2015); Rodman v. Rodman 470 Mass. 539 (2015); and Doktor v. Doktor 470 Mass. 547 (2015).   While the Act has language presumptively ending alimony when the payor reaches full retirement age, the SJC ruled in these three cases that this portion of the Act does not apply retroactively to agreements approved by the courts or judgments before the Act became effective on March 1, 2012.

Similarly, pre-Act agreements and judgments cannot be retroactively modified to allow alimony to terminate or be suspended pursuant to the cohabitation language in the Act.  Chin v. Merriot, 470 Mass. 527 (2015).  While these cases limit use of the Act to provide an automatic modification for cohabitation or full social security retirement age, the “material change” in circumstances provisions still apply.   This means that if a recipient’s cohabitation reduced their need materially, or a payor’s actual retirement reduced their ability to pay materially, then a modification might still be appropriate.  This type of modification would be based on the pre-Act case law, and not the provisions of the new Act.  For example, the pre-Act Pierce case contains direction as to how the court must balance a payor’s “good faith retirement” with the other factors relating to support.  Pierce v. Pierce, 455 Mass. 286, 28 (2009).

Recent cases have also questioned whether the retroactive application of the duration limits in §49(b) is constitutional.  In Van Arsdale and Popp, cases which came down the same day from the SJC in 2017, the court ruled that this option for retroactive modification of duration is constitutional and does not violate due process.  Van Arsdale v. Van Arsdale, 477 Mass. 218 (2017); and Popp v. Popp, 477 Mass. 1022 (2017).    The court reasoned that the Act only creates a presumption for a certain duration of alimony in each case, not an automatic termination date that applies regardless of circumstances.  Id. In each case, the presumption can be argued against by either party, and therefore allows for proper due process.  Id.

Because of these differences between pre-Act and post-act cases, it is important to note that modification of pre-Act cases are subject to the pre-Act rules on these issues.  This means that a pre-Act Separation Agreement that reserved the right to future alimony but waived past and present alimony is considered a “pre-Act” initial order when seeking future alimony. Flor, supra at 365.  Contrast this with the Snow case, in which the initial divorce did not mention alimony at all, and therefore the modification case was treated as an “initial order.”  Snow v. Snow, 476 Mass. 425, 429 (2017).

Is alimony tax-deductible to the payor and taxable income to the recipient?

Until the passage of The Tax Cuts and Jobs Act in December 2017, alimony that met the definition in the tax code was tax-deductible to the payor spouse and taxable to the recipient spouse.  26 U.S. Code §71 (2018).   This means that for federal tax purposes, across all states, payor spouses have been able to deduct their alimony payments from their gross income, and the tax burden of higher-earning payor spouses has been shifted to recipient spouses in lower income tax brackets.  Divorced couples as a unit have thus paid lower income taxes overall to the IRS under this previous tax treatment of alimony.

The Tax Cuts and Jobs Act has ended this “tax benefit” for any divorce or separation instrument executed after December 31, 2018.  The Tax Cut and Jobs Act, supra.  The tax deductibility of alimony will only remain in effect for divorce instruments that are executed on or before December 31, 2018. Those who already have divorce instruments for alimony, or have them on or before December 31, 2018, can continue to take advantage of the old rule for tax deductibility, unless they expressly state that they want the Tax Cuts and Jobs Act to apply to them.  Id.

The waiting period in Massachusetts, (90 to 120 days for the finalization of a Judgment when a Separation Agreement is approved) raises the question of how the IRS will define this December 31, 2018 deadline.  No one will know for sure until the IRS weighs in on these issues, but the simplest interpretation of the plain language of the Tax Cut and Jobs Act would suggest that as long as a Separation Agreement is signed by both parties and notarized on or before December 31, 2018, any agreements for alimony should still be tax deductible.

The Tax Cut and Jobs Act defines the term ‘divorce or separation instrument’ as:

“(i) a decree of divorce or separate maintenance or a written instrument incident to such a decree,
(ii) a written separation agreement, or
(iii) a decree (not described in clause (i)) requiring a spouse to make payments for the support or maintenance of the other spouse.” The Tax Cut and Jobs Act, supra. 

The loss of this deduction for instruments signed after December 31, 2018 will also raise additional questions about the application of the Alimony Reform Act.  The formula for capping the general term alimony amount, for example, was written at a time when 30-35% of the difference in income took into account the tax deductibility of alimony to the payor.  This cap is much higher when considering the change in tax law, and perhaps will require a stronger focus on the “need” provisions in the Act and subsequent cases.

If nothing else, these questions guarantee the ongoing need for thoughtful mediation of cases, and the promise of future appeals for those who fail to find solutions out of court.

First Published in the MCFM Family Mediation Journal.

Friday, December 7, 2018

Valerie Qian Accepts Position in the Circuit Executive's office of the US Court of Appeals for the First Circuit

We are very excited to announce that on December 10, 2018, Valerie Qian will begin a position in the Circuit Executive's office at the United States Court of Appeals for the First Circuit.  While this departure will prevent Valerie from continuing to represent and mediate for Skylark's clients, we want to wish her the best of luck in this new endeavor.

Valerie's Message:

After more than five and a half years, I will be leaving Skylark Law & Mediation, where I have been since the days we were still called Kelsey & Trask and our offices were located in Framingham. I am sad to be leaving the team after so long.

I've learned a lot here from Justin, Melissa, Beth, Julie and Jen and others from the team who have moved on over the years, and will look back with fond memories at the time I've spent here. I'll be moving on to a position in the Circuit Executive's office at the United States Court of Appeals for the First Circuit, and commuting to Boston for work now.

It will be very different but I'm excited for this new adventure and the different ways I hope to grow and serve our community there. Many thanks to Justin and Melissa and everyone else, and I will miss you!

If you have any questions about this transition, please do not hesitate to contact Skylark Law & Mediation, PC or Justin L. Kelsey, Esq. online here or at 508.655.5980 with any questions. 

Thursday, November 1, 2018

The Questions that Lawyers and Mediators aren't asking but should: Let's talk about Pronouns

I recently had the opportunity to train with two of the most prominent mediators in Massachusetts: John Fiske and Diane Neumann. Each time they run a training, John and Diane share what they think is the most important question for a client to answer to have an effective mediation. John says that he thought the most important question is "What do I want?" But then he will tell you, with a knowing smile, that Diane disagreed with him and she would say that the most important question for a client to answer is "Who am I?"

I agree with Diane. The best lawyers and mediators ask their clients not just about what they want, but also deep questions about the clients' identity, goals, and values in order to help the clients resolve conflict in the most effective way possible. Despite knowing this, we often fail to ask clients the simplest questions when we first meet them or have them fill out an intake. We fail to give them an opportunity to answer the question “Who am I?” in the most basic form because most of us don't ask two simple questions:

My Preferred Name or Nickname is: _________________

My Pronouns are: _________________

     Who am I?

Before continuing, I want to acknowledge that I may not be the best person to write this article because I have not personally experienced any societal pressure regarding how I self-identity. I was assigned male at birth (AMAB) and identify as male (this is referred to as cis-gender). I am also white living in a predominately white town, county, state, and country. I am heterosexual. I am tall, broad-shouldered, and I have a deep voice. All of these things mean that when someone sees me in my community many of the assumptions they make about me are probably correct without my having to say anything about how I identify.

This is privilege because I am acknowledged and respected for how I identify myself, without ever having to explain it or feel excluded. It is privilege because it is not a benefit that everyone enjoys. I get to define myself and my hope is that you, the reader, will see that everyone should have the same right to define themselves without having to explain it or feel excluded.

Although I may not be the best person to write this post, I believe it is also important for allies to share their support and to acknowledge that while my voice comes from a place of privilege, it is also my responsibility to use that privilege to support those denied the same voice. In doing so, though, I'm going to rely heavily on the resources and assistance of others who speak from personal experience.

     Educate Yourself

In the past, I made assumptions about how I to refer to clients, and what pronouns they use. I am guilty of asking my clients only for a full legal name. If I asked a client what name to use, it was often a lawyer-like leading question: "I prefer to use first names, is that okay with you?" I never asked about pronouns. This is partly because I hadn't had enough education about the many ways in which people might self-identify, but primarily because of the silent but present privilege inherent in my own identity.  I didn't think it was important because it wasn't important to me.

I can honestly say, in my lifetime, no one has asked me what my pronouns are and have always assumed my pronouns are he/him. As I explained above, this has never been a problem for me because those are the pronouns that reflect my cis-gender identity. I had to educate myself about the question “Who am I?” to realize the frustration I may be unintentionally causing my clients. Luckily, we live in an era where resources are available and plentiful to educate oneself about the complicated nature of identity. 

I took a course offered by Massachusetts Continuing Legal Education on Transgender Persons & the Law (that program is still available as a webcast here) and I recommend it. You can also find resources online or from your local LGBTQ+ groups.  One site that has particularly helpful resources is the Trans Student Educational Resources site, including a visual breakdown of the differences between gender identity, gender expression, and sexual orientation, the Gender Unicorn.

Graphic by TSER, click for more info.
As a visual learner, I found this resource particularly helpful.  They have also provided a table describing some of the most common gender pronouns, and an explanation of their use:

Graphic by TSER

     Why ask about Pronouns?

To show respect for our clients and each other, we should be asking, not assuming, "Who are you?" To those of us who do not have the burden of explaining why we identify as we do, it may seem as if correct pronoun use is not a huge deal. However, for those who find themselves misgendered and with the need to explain who they are at a fundamental level day after day, the need to explain and educate others can go far beyond being annoying to exhausting and even trauma inducing.

At the MCLE program I attended, one of the panelists made a very simple point: what does it cost you to provide this level of respect to others? Essentially it costs you nothing. The small amount of time it takes to learn about and familiarize yourself with pronoun options is nothing compared to the positive impact it can have on someone who feels accepted and recognized, especially if that is not a common occurrence for that person.

Particularly for lawyers and mediators, the importance of having our clients feel heard is paramount to an effective client relationship. Below are links to a few articles discussing the effects of misgendering, and how asking about pronouns can affect a person’s mindset and health:

Health Line: What Does It Mean to Misgender Someone?

The Aragon Outlook: The Power of Pronouns: How misgendering can affect student health

The Undeniable Ruth: Which Pronouns do you Prefer?

     Next Steps

Hopefully at this point you agree about the importance of allowing everyone to self-identify. So, what can you do to help?

Ask the Question

When we know better, we can do better. What does that mean for our clients with respect to pronoun use and gender? It’s really simple: stop making assumptions and ask a question right up front. Lawyers and mediators should add a line to intake and scheduling forms so that clients can answer the pronoun question, without feeling the need to educate or explain how they identify.

Be thoughtful about the way you ask the question. While some people state that they “prefer” certain pronouns, others find the idea that it is a “preference” offensive because we never refer to cis-gender individuals as “preferring” their gender, it just is who they are. On an intake avoid asking what they prefer, and ask simply “What pronouns do you use?” or “My pronouns are:_________.”

In conversation, start with an introduction “I’m Justin Kelsey, my pronouns are he/him.” This invites the question possibly without even having to ask it by demonstrating first that you are open to the other person identifying their pronouns as well.This can be done when communicating electronically as well.  You can set a tone of open acceptance by proactively identifying yourself even if it is not something you have historically felt the need to do. Lawyers and Mediators should be including this information in their e-mail signatures. Below is a sample:

Justin L. Kelsey, Esq.  

Collaborative Divorce  |  Mediation

  T:    508.655.5980

  E:    jkelsey@skylarklaw.com

  in  Linkedin  

   t:    @skylarklaw


You may also want to consider adding pronouns to your social media profiles. These are easy steps that demonstrate to our clients (and our colleagues) that we have a basic understanding of the need to be correctly identified through correct pronoun use in personal interactions.

Listen to the Answer

Once you know someone’s pronouns, use their pronouns without judgment and without questioning. If you have questions, remember that it’s not their job to educate you about the concept of gender identity.  Consider reviewing the resources we’ve provided above instead of asking questions of someone who may already be exhausted or traumatized from being misgendered during their lifetime (for more information watch this video on Thing Not to Say to a Non-Binary Person) This is especially true when you have not established a relationship that includes trust and understanding.

If and when you engage in a dialog with someone about gender, LISTEN first. If you feel like you want to ask questions, always ask yourself if your question could cause additional trauma and if it’s something you could educate yourself on later without placing the burden on your client.

We all make mistakes as well. When using pronouns that may be different than you’re used to it may be uncomfortable at first. Just remember how uncomfortable it must be for the person who is misgendered throughout their life, and if you make a mistake, simply apologize.

Finally, Get Political

It is important to think about the big picture here and to be supportive at a political level too. Ruth Carter, a non-binary lawyer, author, and speaker, kindly agreed to assist me in reviewing this article and has written a helpful piece about the need for non-binary gender recognition on government IDs.

Here in Massachusetts, there is a chance to vote on transgender rights on November 6th. The ballot Question #3 asks MA voters to essentially affirm a law already passed by the legislature that would prohibit discrimination in public accommodations based on gender identity, further described here.

If you are a MA resident, we encourage you to vote YES on Question #3, and to spread these educational resources about identity so others, especially those in privilege, can better understand the complicated nature of identity and how easy it is to show respect for another person’s identity simply by having an open and curious mind, which is the most important tool a lawyer and mediator has to offer.

UPDATE: Question 3 passed with almost 70% of the votes, a resounding affirmation that Massachusetts residents support transgender rights and protections and refuse to stand for discrimination based on gender identity.  While this is a positive sign, the law itself does not prevent people from being discriminated against.  In order to continue to do better, we must insist on enforcement of the law, seek out and share educational resources about gender identity, and continue to work together towards better understanding of each other.  The success of question 3 is a step in the right direction, now let's keep asking the right questions.

Thank you to Ruth Carter, Jennifer Hawthorne, and Rackham Karlsson for their assistance in editing and reviewing this article.

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.

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