Thursday, December 31, 2009

Facebook & Twitter causing Divorces?

As this news video from CNN describes more and more people are blaming Facebook, Twitter, MySpace and other social networking sites for their divorces.

Although I would argue that these sites are simply an outlet for feelings that would otherwise have surfaced in another form, there is still a lesson to be learned here.

Assume that anything you write on the internet (whether on a "private" page or not) is going to be seen by everyone. It is not only discoverable (in the legal sense) but likely to be discovered or passed along or shared by family, friends, or other acquaintances.

Monday, December 21, 2009

What you text can and will be used against you.

We often warn our divorce clients that e-mails they send to their soon to be ex-spouses WILL show up in court. This is because it's almost impossible for two parties involved in an emotional dispute to write correspondence without overtones of disappointment, hurt or anger showing through in tone. This is even more likely in informal correspondence like e-mail.

The same is true for texts, especially now that texts are beginning to replace phone calls as the preferred method of quick short communications. According to this Huffington Post article, "Americans punched out more than 110 billion text messages in December 2008."

There are also significant domestic violence implications with text messaging. For instance, text messages are considered a communication and a violation of a restraining order, even if the victim sent a text message first a reply could result in an arrest and charge of violating a restraining order.

In addition, texts can be another way for abusers to track and control the lives of their victims. This article in the Patriot Ledger makes light of the Tiger Woods scandal and his immature texting, by noting how many wives and girlfriends check their significant other's phone history. This type of monitoring has a darker side when used by abusers.

No matter the context remember that what you put in writing, whether in e-mail, letter, facebook update, tweet, or even a text message leaves a record, and that record could come back to be used against you.

Thanks to DGVElaw for sending us the Patriot Ledger article.

Monday, December 14, 2009

What is the Automatic Restraining Order (Supplemental Probate Court Rule 411)?

In addition to beginning the litigation process, immediately upon the filing of a Complaint for Divorce, the Plaintiff (person who filed the Complaint) is restrained from taking specific actions with respect to their assets and liabilities. Along with the Summons the Court will provide to the Plaintiff, a Notice describing the Rule 411 Automatic Restraining Order. A sample Notice describing the Rule 411 Automatic Restraining Order is available here.

Upon the service of the Complaint and Summons on the other party (the Defendant), they too become restrained by Rule 411. Generally Rule 411 prohibits either party from
a. selling, hiding, encumbering or disposing of any personal property or real property in which either of you have an interest (except for in the case of specific exceptions),
b. incurring any further debt that would burden the credit of the other spouse (such as making charges on joint credit cards),
c. changing the beneficiary designation on any life insurance policy, pension or investment accounts, or
d. doing anything that changes your spouse or your children's coverage under medical, dental, life, automobile or disability insurance.

There are exceptions to Rule 411 which you should discuss with your attorney. Do not violate the Automatic Restraining Order or the Court may, and most likely will, order you to undo whatever action you took and sanction you for violating the Restraining Order.

Friday, December 4, 2009

Meet the Staff of Kelsey & Trask, P.C.

The staff of Kelsey & Trask, P.C. assist our attorneys in bringing quality service and attention to our clients. To learn more about Melissa M. Day, our Administrative Assistant, and Jonathan Eaton, our part-time law clerk, visit our new Staff page.

Wednesday, December 2, 2009

The Sanctity of Marraige

A recent tongue-in-cheek blog post by fellow attorney and blawger, Gabriel Cheong, describes his support for the 2010 California Marriage Protection Act.

The 2010 California Marriage Protection Act, a proposed amendment available at http://rescuemarriage.org/2009/08/22/2010-california-protection-of-marriage-act/, takes Proposition 8 one step further by banning divorce in the state of California.

Support of the 2010 California Marriage Protection Act demonstrates the hypocrisy of attacking gay marriage for being detrimental to the sanctity of marriage when the state allows divorce. Divorce, after all, is the ultimate attack on the sanctity of marriage.

Although this is the classic slippery slope argument, the method can hardly be questioned by those who claim gay marriage will lead to people wanting to marry their pets.

This leads to the question: What does it really mean to protect the sanctity of marriage?

Sanctity is defined by the Merriam Webster Dictionary as 1. the holiness of life and character, or 2. the quality or state of being holy or sacred.

So when you hear pundits, politicians and protesters telling you that the sanctity of marriage is being attacked in the United States, they are right. But it isn't under attack because homosexual couples want to get married. The sanctity of marriage has been under attack since the first time one spouse cheated on their spouse, lied to their spouse, or otherwise disrespected the bonds of marriage.

The fight to keep marriage sacred is not a fight that can be won by the writing of laws, or restricting certain people from enjoying that bond. The fight to keep marriage sacred is an ever vigilant effort by a spouse to support, love and respect their spouse, and it takes two spouses willing to make that effort.

Forcing people to stay in marriages where their spouse is unwilling to make that effort is just as silly as refusing to recognize that homosexuals also have the ability to participate in a sacred bond of support, love and respect with their partners (whether or not the laws support them).

Tuesday, December 1, 2009

Bankruptcy Blog and Website

If you enjoy our Family Law Blog then please check out our brand new Blog devoted solely to bankruptcy law issues: Don't Go Alone: A Bankruptcy Law Blog located at http://bankruptcyma.blogspot.com

We have also opened a new website devoted to providing answers to the many frequently asked questions from our clients: available at http://www.bankruptcylawmass.com or http://bankruptcy.kelseytrask.com

Wednesday, November 25, 2009

Eat, Drink and Remarry

I often ask my Divorce clients to tell me how they visualize their life five years from now. This often helps focus clients on their goals, which helps us determine the best decisions to make in their divorce case. For instance, if a client doesn't see themselves living in this area five years from now, then I wouldn't recommend that they buy their spouse out of a marital home.

One question that comes up in many cases is the likelihood that a client might get remarried, which can have an obvious impact on divorce issues (such as alimony which typically ends upon remarriage).

Almost every Divorce client that enters my office is adamant that they will not get remarried. But the statistics disagree. In fact, 50 percent of divorced individuals remarry within five years. According to a study by the Department of Health and Human Services, the percentage was even higher in the 50s, 60s and 70s.

Many clients don't want to hear about these statistics, but I think that one of my jobs as a Divorce attorney is to focus clients on the future. It is important for people going through a divorce to realize that there is light at the end of the tunnel and they should be thinking about life after divorce, not just life during a divorce.

Although, a Divorce client might not think a 50% chance that they'll remarry in five years is good news today, I think believing that love is still possible ultimately gives people hope and optimism about their future.

Thursday, November 19, 2009

What does it mean to be a Father?

In Tuesday's New York Times, there was an article entitled "Losing Fatherhood" that explores how DNA testing has changed the face of Fatherhood in America. It's an interesting read and raises the question of what does it really mean to be a Father.

Last night on the ABC comedy the Modern Family, the patriarch played by Ed O'Neill (of Al Bundy fame) states that "90% of being a Father is just showing up."

In Modern Family Ed O'Neill's character, Jay Pritchett, has an adult gay son who is in a couple and has an adopted daughter, and an adult daughter who is married with three children as well. In addition, Jay Pritchett has re-married to a younger woman and has a step-son. Although there are three distinct families in the show, all with different "father figures", they are all tied together by their relationship to Jay.

In last night's episode (available online here) Jay plays the role of grand-father, father and step-father and in all of these interactions, Jay shows what it means to be a Father. By just "showing up" he is not perfect, but he is involved, protective and loving. This is especially obvious in the show when his step-son's biological father fails to show up for a visitation.

For me, this show highlights the fact that whether or not a family is "traditional" or "non-traditional" we can all still tell the difference parents can make in a family by being involved and at least "showing-up."

Tuesday, November 17, 2009

The Honeymooners' Divorce: Collaborative Law, Mediation or Litigation - Part III

The Kramden's and Litigation:

Ralph is a bus driver and Alice is currently unemployed but has worked as secretary at times when Ralph has been laid off. They have no children and Alice is primarily responsible for the management of the finances. Ralph often gets involved in ridiculous schemes that Alice claims have wasted their money. Ralph and Alice often insult each other, and Ralph makes constant threats such as "One of these days... Pow! Right in the kisser! One of these days Alice, straight to the moon!."

Recently Ralph was caught using his cell phone while driving and lost his job as a bus driver. When he came home and told Alice she berated him for his stupidity and Ralph became extremely angry. He got right in Alice's face and said, as he so often has, "One of these days... Pow! Right in the kisser! One of these days Alice, straight to the moon!." Alice replies "I'd like to see you try" and in response Ralph steps closer to her and pulls back his arm making a fist. Rather than wait to see if Ralph would actually hit her, Alice immediately backs away. Ralph does not follow her, but Alice is afraid and leaves the apartment.

She goes into a friend's apartment down the hall and calls the police. The police arrive and after interviewing both parties they indicated that they are not going to arrest Ralph. They ask Alice if she wants to request a 209A restraining order against Ralph and she states that she does. The police call the emergency Judge who approves an emergency restraining order. The police escort Ralph out of the apartment who has calmed down and accepts the police's request without any fight or argument.

Ralph, escorted by the police, collects some of his clothes and moves in with his friend, Ed Norton.

The following morning, Ralph and Alice both show up without lawyers at a hearing in the Suffolk District Court. Alice indicates during the hearing that she was afraid that Ralph was going to hit her during their argument, even though he has never carried out his threats in the past. Alice also states that she is not afraid of him right now and that she feels safe so long as he does not move back in. Alice also indicates that she intends to file for Divorce and that she doesn't want Ralph to move back in. Ralph agrees that he won't move back in and that he will continue to live with Ed. The Judge indicates to Alice that he can only extend the Restraining Order if she has a "reasonable fear of imminent serious physical harm," and given her testimony he cannot extend the restraining order.

Both Ralph and Alice consult with attorneys. Alice does not consult with a free Legal Aid service because she is back to working as a part-time secretary and she believes that she does not qualify for their services.

Alice borrows money from a friend to hire the attorney she consulted with because she doesn't feel safe negotiating directly with Ralph. Alice's attorney files a Complaint for Divorce.

Eventually right before the Pre-Trial, Ralph hires an attorney as well and the Divorce case is settled via Separation Agreement at the Pre-Trial. Both parties end up with some debt because of the cost of their legal fees.

COULD THIS HAVE GONE BETTER: Unfortunately, when domestic violence is an issue in a case, it is practically impossible to make use of mediation or collaborative law. Although mediation or collaborative law could have been cheaper, both options depend on a certain amount of trust between the parties and it is necessary for there not to be any threat of coercion.

Even in an instance where no physical violence has occurred, the threat of violence can be just as damaging and puts the victim at a disadvantage in any negotiation (notwithstanding the ongoing safety concerns).

As was suggested by one of our voters, DGVE law, Alice, might have been better served by having a trained domestic violence advocate work with her. Resources for domestic violence victims in Massachusetts are available here. Alice should have also discussed her case with potential legal aid services before assuming she didn't qualify. Resources related to finding legal counsel and/or legal services are available here.

Monday, November 9, 2009

What happens to Social Security payments in a Divorce?

A Divorce actually has very little effect on your rights in your spouse's/ex-spouse's Social Security benefits.

So long as the marriage lasted ten years, a spouse who has not worked or who has low earnings can be entitled to as much as one-half of the retired worker’s full benefit.

If you are eligible for both your own retirement benefits and for benefits as a spouse/ex-spouse, Social Security always pays your own benefits first. If your share of your spouse's/ex-spouse's benefits are higher than your retirement benefits, you will get a combination of benefits equaling the higher spouse benefit.

The amount of your spouses/ex-spouses benefit that you receive has no effect on the amount of benefits that they receive.

To see a more complete explanation visit this helpful Social Security website.

Retirement Does Not Stop Alimony - The Pierce Decision

UPDATE: There is pending legislation for major changes to the alimony statute in Massachusetts. The Alimony Reform Act of 2011 was filed on January 18, 2011 and you can learn more about the Act at MassAlimonyFormula.com or in our recent blog post highlighting the differences between the bill and the current law.

A much awaited decision from the Massachusetts Supreme Judicial Court was published today: Pierce v. Pierce, SJC - 10381, Nov. 9, 2009. In this case, the Husband had agreed to an alimony order of $110,000 per year after a 32 year marriage, and had voluntarily retired at age 65. Upon retirement, the Husband filed a Complaint for Modification seeking the elimination of his alimony. The trial Judge reduced the alimony to $42,000 per year but declined to terminate alimony.

The Pierce appeal centered around the Husband's claim that there should be a presumption that alimony ends upon retirement. Without that presumption, the Husband argues, the person receiving alimony has the right to essentially "veto" the retirement choice.

The Court rejected this argument, stating that the Judge's decision was within her discretion, and that retirement is only one of the factors in deciding what an alimony order should be. In answering the Husband's argument that this creates a "veto", the court dances around the issue by stating that the alimony judgment "eventually will need to be reduced," but that "the supporting spouse, even after reaching a customary retirement age, in the sound discretion of the probate judge, may be expected temporarily to postpone retirement or to find part-time work to help the recipient spouse weather difficult financial circumstances.

Without saying it outright, the Court is endorsing the idea, that to some extent, when it comes to alimony the law treats the two parties as if they're still married. One spouse in a marriage doesn't have a veto over the other's decision to retire, but it is certainly something that would be discussed before a unilateral decision was made, especially if the other person is currently out of work. This is consistent with the Court's treatment of a long-term marriage forever linking two people's financial circumstances. We're not saying it's fair, just that it's consistent with the current case law, and that any changes are going to have to come from the legislature.

As an interesting side note, in it's discussion the Court reiterates the case law stating "In conducting this multifactor analysis, whether in fashioning the original alimony judgment or in modifying that judgment, the judge must weigh all the statutory factors in light of the facts of the particular case; no single factor is determinative. "

This quote could apply in a much broader sense than just to the factors in this case. For instance, many Judges have noted recently that they favor using a formula (such as the MBA-BBA Joint Tax Force Formula, explained further in the Stevenson-Kelsey Spousal Support Calculator article) . The Court's language regarding considering all factors, would appear to indicate that formulas are not allowed.

As a practice tip, this suggests that whether you are arguing the use of an alimony formula or arguing for the end of alimony upon retirement, you should always provide the underlying arguments on all of the statutory factors as well.

Wednesday, October 28, 2009

Can we hire one attorney to represent us both in our Divorce?

Don't believe everything you see in the movies. In the popular teen pregnancy flick Juno the adopting parents end up getting divorced and the Husband states "I called Gerta Rauss. She says she can represent both of us. They call it 'collaborative divorce.' It’s apparently all the rage right now."

Although, collaborative law is "all the rage" right now, it does not involve one lawyer representing both parties.

It is not ethical or practical for a lawyer to represent both parties in a Divorce, whether through collaborative law or litigation

In fact, Rule 1.7 of the Massachusetts Rules of Professional Conduct prohibits a lawyer from representing a client if that representation will be directly adverse to another client unless the lawyer reasonably believes the representation will not adversely affect the relationship with the other client AND each client consents after consultation.

Although both clients might consent, it is not reasonable to believe that a lawyer can represent two adverse clients at the same time in the same action and look out for both of their interests.

It is possible to have a lawyer act as a mediator but in that case the lawyer does not represent either party and is not looking out for either of your individual interests. It is also possible to have only one party hire an attorney, but it is important for the other party to recognize that that attorney is not looking out for their interests too.

If you'd like to learn more about hiring an attorney you can schedule an initial One Hour Consultation here.

You can also read a hypothetical example of a Collaborative Law Divorce on our blog here.

Thanks to Michelle Bernier-Capaldo for suggesting this question.

Friday, October 16, 2009

M.G.L. 93H and Data Privacy Basics

Massachusetts has enacted one of the strictest data-privacy laws in the country and is scheduled to go into effect on March 1, 2010. Any personal information that any business entity maintains or stores is subject to Massachusetts General Laws Chapter 93H, while M.G.L 93I governs the destruction of physical and electronic documents and data. Both M.G.L. 93H and M.G.L. 93I define “personal information” as a person’s last name and either his or her first name or first initial, combined with any one of the following: a social security number; driver’s license number or state-issued identification card number; financial account number, debit or credit card number, with or without any required security code, access code, personal identification number or password that would permit access to a resident’s financial account.

Guidance for business’ implementation of M.G.L. 93H can be found in 201 CMR 17.00, and creates an affirmative duty to every person that “owns, stores or maintains personal information about a resident of the Commonwealth” to “develop, implement, maintain and monitor a comprehensive, written information security program applicable to any records containing . . . personal information.” In determining whether such comprehensive security program complies with M.G.L. 93H and accompanying 201 CMR 17.00, a court will consider:
(a) the size, scope and type of business of the person obligated to safeguard the personal information under such comprehensive information security program;
(b) the amount of resources available to such person;
(c) the amount of stored data;
(d) the need for security and confidentiality of both consumer and employee information.

Any business must have a written information security program (“WISP”) that establishes security policies for the firm’s computers and wireless system, and all personal information contained therein. All personal information stored on laptops or “other portable devices” must be encrypted. All records and files, including emails, containing personal information that is transmitted across public networks or wirelessly must be encrypted “[t]o the extent technically feasible.” The written security program must include plans for systems monitoring for unauthorized use, up-to-date firewall protection, and up-to-date system security software that is set up to receive regular security updates.

Authentication protocols must include a “reasonably secure method of assigning and selecting passwords.” 201 CMR 17.04(1)(b). Assigning random complex passwords to clients would be a preferable defensive strategy. Such passwords must be controlled “in a location and/or format that does not compromise the security of the data they protect.”

With that in mind, businesses should develop a policy which includes:
(a) Encryption of all emails that contain personal information.
(b) Encryption of all personal information stored on portable devices
(c) Installation of system security agent software that is set up to receive security updates
(d) Maintenance of firewall protection for all files on a system connected to the internet.
(e) Implement a termination/Disciplinary policy for misuse of personal information.
(f) Education/Training of employees on proper use of computer security system and importance of personal information security.

Attorney Trask of Kelsey & Trask, P.C. was a cryptologic materials manager in the U.S. Marines, and has experience planning and implementing encrypted communications (voice and data) networks. If you have any questions regarding M.G.L. 93H, contact us at (508) 655-5980 or click here.

Wednesday, October 14, 2009

October is National Domestic Violence Awareness Month

President Obama on September 30, 2009 proclaimed October, National Domestic Violence Awareness Month.

As with any issue that endangers the health, safety or welfare of individuals, the first step towards ending that danger is to raise Awareness.

It seems that we are bombarded everyday with walkathons, and fund raisers, and pharmaceutical commercials that want to raise our Cancer Awareness, our Heart Disease Awareness, even our Awareness of Erectile Dysfunction. It becomes easy to forget that there are dangers in this world, and even in our own backyard, that don't stem from viruses or diseases. There are dangers, such as Domestic Violence that aren't caused by hunger or a germ, but instead by poor choices and a failure of support.

It's hard to know if there will ever be a cure for cancer, but we know the cure for Domestic Violence. A safe home and access to justice can provide victims of Domestic Violence with a voice to end their suffering.

If you or someone you know suffers from Sexual or Domestic Violence, call the National Domestic Violence Hotline at 1-800-799-SAFE, or if you live in Massachusetts check out these resources available on the Massachusetts State website, and seek help.

Thank you to Danielle G. Van Ess, Esq. for reminding us that sometimes there are greater issues to blog about than just questions of court and law.

Tuesday, October 13, 2009

Is there a Criminal Record of a 209A Restraining Order?

If you are served with a Complaint for Protection from Abuse (sometimes referred to as a 209A Restraining Order because of the statute: M.G.L. c. 209A) then your name and the Complaint are recorded in the Domestic Violence Record Keeping System which is visible to Judges and law enforcement officials (and certain airport personnel) through CARI (Court Activity Record Information), a subset of CORI (Criminal Offender Record Information).

There is presently no statutory provision in Massachusetts allowing these records to be expunged.

This is explained in greater detail in a Massachusetts Bar Association article which indicates that the Mass Bar proposed an amendment to the statute, mandating expungement of the record when the Order was vacated at the first hearing (after being issued on an ex parte hearing, which most 209A Orders are initially). Unfortunately, this legislation was not enacted by the legislature, and today the law remains that there is no statute allowing these records to be expunged.

In Vaccaro v. Vaccaro a Husband requested via Motion that the record be expunged in the statewide system after a Judge found insufficient facts to justify extension of the Order, but the Supreme Judicial Court overturned the expungement because there is no statutory authority to expunge the record. Vaccaro v. Vaccaro, 425 Mass. 153, 680 N.E.2d 55 (1997)

In Commissioner of Probation v. Adams the Court did allow a record to be expunged, distinguishing the circumstances in that case by stating “a judge has the inherent authority to expunge a record of a 209A order from the Statewide domestic violence registry system in the rare and limited circumstance that the judge has found through clear and convincing evidence that the order was obtained through fraud on the court.” In that case “fraud” consisted of a calculated pattern of nineteen false and perjurious statements. Commissioner of Probation v. Adams, 65 Mass. App. Ct. 725, 730, 843 N.E.2d 1001 (2006)

In Noble v. Noble the Appellate Court (quoting Rockdale Mgmt. Co. v. Shawmut Bank, N.A., 418 Mass. 596, 598, 638 N.E.2d 29 (1994)) further defined a “fraud on the court” as when it can be “demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense.” Noble v. Noble, 75 Mass.App.Ct. 1121, 909 N.E.2d 59 (2009)

Unfortunately, this means that in most cases where a 209A Restraining Order is vacated at the first hearing, it is still unlikely that the Defendant can get the original Order expunged from their record. The Courts have stated that this reflects a legislative intent to give the Courts and police as much information as possible when dealing with domestic violence situations. Unfortunately, as is often the case, this information can cost an innocent person their rights, even if they were falsely accused (but can't meet the burden of proving fraud).

Monday, October 12, 2009

Family Law Blogs Directory and other Useful Tidbits

We'd like to thank J. Benjamin Stevens for adding us to his Directory of State-Specific Family Law Blogs. If you follow our blog and are looking for information that might be more specific to your state then check out the directory.

In addition, if you're contemplating divorce or currently involved in a divorce, there is some other great advice to be found on Attorney Stevens' website, including the latest post "Tips to Minimize the Difficulties of Divorce".

Friday, October 9, 2009

New State Median Family Income Figures Released

The United States Department of Justice has released the Census Bureau State Median Family Income By Family Size figures for means test calculations on Bankruptcy Cases filed on or after November 1, 2009. The new figures are available on the U.S. Trustee's website here.

These figures apply only to cases filed on or after November 1, 2009.

For Massachusetts, the new State Median Family Income figures are as follows:

Family of 1: $53,505
Family of 2: $69,451
Family of 3: $82,591
Family of 4*: $99,648

*Add $6,900 for each individual member in excess of 4.

Try our Chapter 7 Means Test Calculator by clicking here or on your mobile device by clicking here, now updated with a NEW feature that allows you to choose whether to use the old or new Median Family Income figures.

For additional questions regarding the new State Median Family Income figures, or any questions regarding Bankruptcy or the Chapter 7 Means Test, please contact Attorney Matthew Trask at (508) 655-5980.

Monday, September 28, 2009

Should Parenting Plans change with the age of the children?

I have recently become a Father and I spend a lot of time amazed at how my daughter changes every day. Those changes mean that her needs continue to change and grow, and paying attention to those changes is part of effective parenting.

Every case is different, especially when it comes to family dynamics, so every case requires your attorney to listen and learn about YOUR family. Because every family is so different, there cannot be specific guidelines on custody and visitation for every family or even every child.

The Court does try to recognize that their are certain developmental stages that each child goes through, and that it is important for both parents to be involved in the child's life for their development to be complete, and also that at each stage, a child's needs are different.

In an attempt to recognize at least some generalities in these differences, a committee of mental health practitioners, family law lawyers and Judges was formed. They wrote a very useful guide to shared parenting called Planning for Shared Parenting: A Guide for Parents Living Apart. Our firm recommends that any parent involved in a custody case read this brochure and use it as a starting point for thinking about and discussing how their child's unique needs can be met by a well-thought out and tailored Parenting Plan, and how that Parenting Plan will have to change as the child grows older.

Monday, September 21, 2009

The Huxtable's Divorce: Collaborative Law, Mediation or Litigation - Part II

The Huxtables and Collaborative Law:

Cliff is a doctor and Clare is a lawyer. They have five children. They both share in parenting and managing the finances. Cliff's office is located in the home. Some of the children live at home but the number is constantly changing because Clare and Cliff keep their doors open to their children.

Clare recently informed Cliff that she has met another lawyer who she feels has more in common with and she wants a divorce. Cliff is shocked but after dealing with the initial shock, he realizes that he does not want the process to be acrimonious or to affect their relationship with the children. He has seen how other doctors have had their families and practices torn apart by drawn out litigation and does not want his children or patients to suffer.

Both Clare and Cliff consult with attorneys and are informed of the possibility of proceeding through mediation, collaborative law or litigation. Although, Cliff is wary of litigation, he is afraid of mitigation because Clare is a lawyer and he feels she would have an advantage. He agrees to hire a lawyer trained in Collaborative Law and requests that Clare does the same.

Cliff's lawyer presents a proposed Collaborative Law agreement in which both Cliff's attorney and Clare's attorney agree not to represent the parties if they change their mind and decide to litigate. Clare sees the value in having two attorneys who are vested in the settlement and would be motivated to avoid litigation.

Clare, Cliff and their attorneys meet ten times over the next twelve months. At times the process seems to be dragging and Cliff becomes very frustrated with the significant difference in values presented by his expert and Clare's expert for both his medical practice and Clare's interest in her law firm. He feels like they are spending too much money on experts and lawyers and are no closer to a settlement.

Clare has become very defensive in the Collaborative Law meetings because Cliff has begun requesting more and more restrictions on the parenting plan with the children, which has become overly complicated in her opinion. She feels that Cliff is trying to punish her for having an affair and not focused on what is best for their children.

Both Clare and Cliff explore litigation with new attorneys but because of the cost already invested with their Collaborative Law attorneys, they agree to give it another try and after two more meetings they are able to reach a Separation Agreement, which is presented to the Court with a Joint Petition for Divorce.

Cliff remains very bitter after the process because of the very high cost spent by both parties on their counsel and the length of time the process took.

COULD THIS HAVE GONE BETTER: Because of Cliff's fears and Clare's legal expertise it is unlikely this process could have gone much better. It is probable that Mediation, if successful, would have been a much quicker and cheaper process. But it is also possible that Mediation would have failed because of the imbalance of power between Cliff and Clare when it comes to their legal knowledge (although financially they are probably on fairly equal footing). Depending on the mediator and their style, Cliff's anger over Clare's affair could also have hampered this process.

Because of the business interests and the difficulty of assigning values to their business when they represent both assets and income, they could have been better served by having one agreed upon business valuator. This could have been done by the Collaborative Law attorneys or through mediation. Separate business valuations can often drive up the cost of a case, whether in Collaborative Law or Litigation.

Don't forget to vote for what the Kramdens should do: leave a comment here.

Tuesday, September 8, 2009

How NOT to Declare Bankruptcy

Declaring Bankruptcy is a time-intensive and technical process involving financial research, preparation of documents and schedules, and attention to detail.

This is NOT how one "Declares Bankruptcy".

If you would like to learn more about the correct way to declare bankruptcy, contact Attorney Matthew Trask or Attorney Justin Kelsey for a one-hour initial consultation at (508) 655-5980.

(Thanks go to Jonathan Eaton and NBC's "The Office" for providing the inspiration for this Blog).

Wednesday, September 2, 2009

The Cleavers Divorce: Collaborative Law, Mediation or Litigation - Part I

The votes are cast - The Cleavers and Mediation:

Ward is a businessman and June is a stay-at-home mom. They have two children Wally and Beaver. Ward handles all of the finances and June handles most of the home care including parenting, although once in a while Ward is needed to help discipline the children (in a very stern but fair kind of way).

Ward and June agree that the spark and color had left their marriage long ago and that they were only staying together for the children. They have agreed that a divorce would be best and have already sat down to a family meeting with Wally and the Beaver and explained that although Mom and Dad are getting a divorce, they will still both be involved regularly in the children's lives, that it is not the children's fault and that they both love the children very much.

Ward, eager to move forward with the divorce quickly and as cheaply as possible, suggests that they attend mediation and provides June with the name of a mediator he has found. Agreeing with the logic of using a mediator, June agrees and they attend their first mediation meeting.

At the first meeting, the Mediator explains how mediation works, telling Ward and June that the mediator does not represent either of them, and that their job is only to help Ward and June reach an agreement, not to steer them in any particular direction. The mediator explains that they will both have to provide a Financial Statement and that they should begin thinking about what they each want for a custody and visitation plan, and for the division of assets and liabilities.

After the meeting Ward informs June that he wants joint custody and that he will help her do her Financial Statement since he has all of the financial information. He also wants to sell the house and he asks her to agree to this immediately so they can list the house for sale as soon as possible.

June is worried that she doesn't know enough about their finances to know whether the house has to be sold. She also realizes that she doesn't really know what joint or sole custody means. June talks to her friends who all suggest that she meet with an attorney. After meeting with a few attorneys, June realizes she needs help and hires an attorney. Upon realizing that June has hired an attorney, Ward feels like June was trying to get an advantage behind his back and hires an attorney as well. They end up proceeding through litigation, because June's attorney insists on filing the Complaint for Divorce to protect the assets with the Automatic Stay and to provide for mandatory discovery. Eventually they settle their case at Pre-Trial.

COULD THIS HAVE GONE BETTER: Because of June's lack of knowledge about the finances it was likely that she would feel uncomfortable at some point in the mediation, even if Ward hadn't pushed her at the beginning to be more ready to make decisions. Her lack of information was going to make it difficult for her to make decisions. This could have been resolved by June being more aggressive, but if this has not been the pattern in the marriage it was unlikely to change now. For these reasons June needed an adviser/advocate, i.e. her own lawyer.

If the parties had communicated their intentions better, it is possible June and Ward would still have been able to use mediation, and just have their lawyers advise them individually as to the Agreement and disclosure of financial information.

This was likely a more ideal case for Collaborative Law, because of June's need for a representative. In Collaborative Law both parties and lawyers agree to commit to working towards a settlement and to not file litigation. In a true Collaborative Law agreement, the lawyers also agree that if the case goes to litigation that they will not represent the parties, i.e. both lawyers are thus committed to the settlement path as well. Although there's the danger of having to pay two lawyers each, the advantage is the great potential for a less acrimonious process.

Because both Ward and June committed to settlement, but just had an imbalance of power/knowledge, they would have been best served by Collaborative Law.

There's still time to vote for what the Huxtables and Kramdens should do: leave a comment here.

Sunday, August 30, 2009

What is the Stevenson-Kelsey Spousal Support Calculator?

UPDATE: There is pending legislation for major changes to the alimony statute in Massachusetts. The Alimony Reform Act of 2011 was filed on January 18, 2011 and you can learn more about the Act at MassAlimonyFormula.com or in our recent blog post highlighting the differences between the bill and the current law.

Attorney Scott R. Stevenson of Hingham, Massachusetts and Attorney Justin L. Kelsey, Esq. (one of the authors of this blog) created the Stevenson-Kelsey Spousal Support Calculator as a tool to enable family law practitioners to better advise their clients regarding the settlement of divorce cases where a primary issue is the proposed alimony payment from one spouse to the other.

There is not currently any “formula” for the calculation of the spousal support obligation (also referred to as “alimony”) that is endorsed by either the Massachusetts Legislature, a consensus of Massachusetts Probate and Family Court Justices, or even a consensus of Massachusetts family law practitioners.

There are many groups who are seeking more definitive changes in the alimony laws in Massachusetts, including groups of lawyers and judges, such as the Joint Alimony Task Force of the MBA and BBA, and also groups of concerned citizens such as Massachusetts Alimony Reform.

Unfortunatley, there are seemingly as many different opinions in the family law field as there are ways to interpret the broad language of MGL, Chapter 208, § 34. Section 34 is the Massachusetts statute relating to the award of spousal support which provides that, in determining the amount of alimony, if any, to be awarded to any one spouse from the other spouse, the Court shall consider: the length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties, the opportunity of each for future acquisition of capital assets and income, the nature and value of the property to be so assigned, the present and future needs of any dependent children of the marriage; and the Court may also consider: the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit.

Not only are these factors numerous, they are in many ways subjective and the Judges are currently left with the difficult task of combining all of these factors to create an alimony order.

The purpose of the Stevenson-Kelsey Spousal Support Calculator is not to suggest that any one of the formulas presented herein is better than any other at approximating the required evaluation under current Mass. Gen. Laws. Ch. 208 § 34. However, the authors do believe that a more consistent approach to the calculation of the alimony obligation – based on quantifiable factors – can benefit the citizens of the Commonwealth of Massachusetts in coming to agreements more quickly and more fairly, thus ending the stresses and expense of divorce litigation sooner rather than later.

Therefore, while we do not endorse any of the specific alimony guideline formulas described herein, we do hope that reference to these formulas will assist family law practitioners in providing both their clients and the Court with increased guidance on appropriate sums for alimony or spousal support in Divorce Agreements.

Each of the formulas was developed by their respective authors after considered and learned debate, and at the very least, we believe that the family law bar and our clients can both learn from the result of that debate in other forums and apply what has been learned to the resolution of disputes in Massachusetts’ divorce litigation. It is in that spirit and with that purpose that we present the Stevenson-Kelsey Spousal Support Calculator.

To view and use the Stevenson-Kelsey Spousal Support Calculator please visit
www.kelseytrask.com/spousalsupport.htm, or you can obtain your own copy of the Stevenson-Kelsey Spousal Support Calculator for use on your own computer by submitting a request here.

Wednesday, August 12, 2009

Check out these fun sites:

It's time for a lighter, more fun blog post. Check out these sites/stories which we hope will add a little amusement to your day:

Husband who tries to avoid divorce proceedings by claiming the marriage ended when he died. Yes you read that correctly.

Canadians are trying to kill us with health care reform. Don't worry it's tongue in cheek, and very very funny.

Take a virtual tour of the Kelsey & Trask, P.C. offices in Natick. Now you'll know your way around when you come to visit.

Thursday, August 6, 2009

Mediation, Collaborative Law or Litigation: What's your Vote?

One of the first things I explain to clients in our initial one hour divorce consultation is that there are three types of professionals in Massachusetts who can help clients resolve their divorce case: Mediators, Lawyers trained in Collaborative Law, and traditional Litigators. Each of these methods has strengths and weaknesses, and they can be demonstrated by showing you how some well known couples might have experienced these various options:

Couple #1 - The Cleavers. Ward is a businessman and June is a stay-at-home mom. They have two children Wally and Beaver. Ward handles all of the finances and June handles most of the home care including parenting, although once in a while Ward is needed to help discipline the children (in a very stern but fair kind of way).

Couple #2 - The Huxtables. Cliff is a doctor and Claire is a lawyer. They have five children. They both share in parenting and managing the finances. Cliff's office is located in the home.

Couple #3 - The Honeymooners/The Kramdens. Ralph is a bus driver and Alice is currently unemployed but has worked as secretary at times when Ralph has been laid off. They have no children and Alice is primarily responsible for the management of the finances. Ralph often gets involved in ridiculous schemes that Alice claims have wasted their money. Ralph and Alice often insult each other, and Ralph makes constant threats such as "One of these days... Pow! Right in the kisser! One of these days Alice, straight to the moon!."

Please Vote for whether each couple should use mediation, collaborative law or litigation, by leaving your Comments below.

P.S. Thanks to DGVElaw for giving us the idea for this post with her estate planning couple.

Tuesday, August 4, 2009

Equitable Division: This isn't Judge Solomon's Court

I was recently directed to two articles involving Husbands, one in Germany, and another in Cambodia, that, as part of their divorce, took their half of their marital homes, literally. Not by selling and getting their share of the equity, and not by buying their Wife out of her share, they literally cut the house in half.

Don't get any ideas if you're getting divorced in Massachusetts, though.

In Massachusetts the Court is directed by M.G.L. c. 208 § 34 to divide the assets of the parties and award support based on numerous factors including the length of the marriage, health of the parties, age of the parties, income of the parties, opportunity for future acquisition of assets and income, and more.

When considering all of these factors, we often discover that an equal division of the assets, i.e. a 50/50 division, is the equitable and fair resolution. However, there are also cases where the totality of the circumstances require an unequal division. You won't find Judge Solomon in a Massachusetts' Court, though you might still find some wisdom.

P.S. Don't think it only happens in other countries. This couple in New York built a wall down the middle of their house.

Thanks to Michael Paonessa for sending us these articles.

Friday, July 31, 2009

If I File for Bankruptcy, does the Automatic Stay Protect Co-Debtors?

Generally, the automatic stay provisions of the bankruptcy code at 11 U.S.C. § 362(a) apply only to the debtor filing for relief from the bankruptcy court. However, in certain circumstances, the fact that a debtor filed for Chapter 13 bankruptcy can stop collection action against co-debtors, even if the co-debtors did not file bankruptcy. The “co-debtor stay”, set out at 11 U.S.C. § 1301(a), is a section of the Bankruptcy Code that prevents collection action on consumer debts against co-debtors of the person filing for Chapter 13 bankruptcy for the duration of the bankruptcy case. The co-debtor stay operates to delay collection efforts against individuals close to the debtor who have obligated themselves on debts incurred by and for the benefit of the Chapter 13 debtor. Generally, the co-debtor stay applies with respect to any consumer debt for which another individual is also liable, and it continues until the Chapter 13 case has ended.

The obligation of the co-debtor does not disappear; the co-debtor stay only serves to postpone collection actions by the creditor. If you repay a consumer debt at 30 cents on the dollar through the Chapter 13 plan, your co-debtor will be liable for the remaining 70% after the petitioner’s debts are discharged. However, during the time you are in Chapter 13, co-debtors are protected from further collection action. A Chapter 13 plan may (but is not required to) seek to re-pay certain joint debts in full, in order to protect the joint debtor.

The co-debtor stay only applies to consumer debt and it only applies in Chapter 13. The co-debtor stay does not apply to Chapter 7 or Chapter 11 cases, and does not apply to non-consumer debts, which are usually tax debts, debts incurred with a profit-making motive, or debts relating to the dishonor of a negotiable instrument (such as a “bad check” debt). Many courts have determined, however, that Domestic Support Obligations (such as alimony and child support are regarded as consumer debts for the purposes of this chapter).

If you are considering filing a petition for relief under the Bankruptcy Code, the section you file under could have implications with respect to the co-debtors. If all (or a portion) of your debts are joint with another person, that fact could be one of many factors to consider when deciding whether to file a Chapter 7 or Chapter 13 petition.

Wednesday, July 22, 2009

Will I be able to keep my health insurance after the divorce?

Whether or not you can keep your health insurance after the divorce will depend on two factors, one of which is in your control and one of which is not. If you are currently on your spouse's health insurance, then they are required by the Rule 411 Automatic Restraining Order to maintain you on your health insurance during the pendency of the Divorce case. However, at the end of the case when you are divorced your status as an eligible dependent on their plan may change.

If your spouse's employer participates in a self-insured plan (usually only the case with very large employers), then the plan is covered by Federal law and not State law, in which case the employer can ignore the Massachusetts' law requiring eligibility of ex-spouses. This means that if your spouse's employer has a self-insured plan then no matter what the Court order states you will likely be terminated from your spouse's health insurance upon the divorce. At that time you will be eligible for COBRA, which is a program that allows for continuation of health insurance coverage for a set period of time so long as you pay 102% of the full premium.

If, however, your spouse's plan is not a self-insured plan then you will be eligible to continue coverage so long as you pay attention to the second factor, which is whether or not your Judgment of Divorce includes language requiring coverage. It is very important to consult with an attorney regarding the proper language to include in a Divorce Agreement to ensure that you will be eligible to continue to health insurance, if your spouse's employer allows for that option.

For more information on how to maintain or find health insurance after a divorce, check out this brochure prepared and distributed by the Massachusetts Attorney General's Office and Health Law Advocates entitled Staying Healthy: A Guide to Keeping Health Insurance After Divorce.

Tuesday, July 7, 2009

New Income Based Repayment Program May Reduce Student Loan Payments

Although student loan debt can almost never be discharged trough bankruptcy, a new program which went into effect on July 1, 2009 called Income-Based Repayment (IBR) may provide some relief for those who cannot afford high monthly federal student loan payments.

The U.S. Bankruptcy code at 11 U.S.C. 523(a)(8) specifically deems student loan obligations as “nondischargeable debt” (i.e., debt that cannot be discharged through a bankruptcy filing) absent a showing of “undue hardship”, which, as contemplated by the code, is a nearly impossible standard to prove.

Fortunately, the IBR program may provide some relief. IBR cannot be used to obtain an outright discharge of student loan debt, but it can help borrowers keep their loan payments affordable with payment caps based on income and family size; often capping IBR loan payments at less than 10 percent of their income household income. IBR will also forgive remaining debt, if any, after 25 years of qualifying payments.

IBR is available to federal student loan borrowers in both the Direct and Guaranteed (or FFEL) loan programs, and covers most types of federal loans made directly to students, but not those made to a student’s parent.

The IBR program requires that participants be qualified based on income, and to be eligible, it would take more than 15 percent of your income above 150% of federal poverty level to pay off your loans on a standard 10-year payment plan. IBR uses a sliding scale to determine your adjusted federal loan repayment amounts. If you earn below 150% of the federal poverty level for your family size, your required loan payment will be $0. If you earn more, your loan payment will be capped at 15 percent of your income above that amount. In most cases, that figure works out to less than 10 percent of your total income. A useful calculator to determine your eligibility is available here.

In some situations, your reduced payment under IBR may not cover the interest on your loans. If so, the government will pay that interest on your Subsidized Stafford Loans for your first three years in IBR. After three years and for other loan types, the interest will be added to the total amount you owe. While your debt may grow if your IBR calculated payments are calculated to be lower than the monthly interest, anything you still owe after 25 years of qualifying payments will be forgiven.

While student loan debt remains essentially nondischargeable, the IBR program can be used obtain meaningful relief from individuals seeking to reduce student loan payments to qualified participants.

If you are struggling with student loan debt, mortgage debt, credit card and consumer loan debt, the IBR program can be one part of a comprehensive legal strategy to address and resolve financial problems.

Monday, July 6, 2009

What if you were never born?

No, this is not a post about "It's a Wonderful Life". But I will tell you a story about a man who was told by the Town of Carver that he did not exist.

While in the Plymouth Probate and Family Court last Tuesday, June 30, 2009, waiting for the Judge to call my client's Motion for hearing, I was listening to the presentations made by other litigants in Court for hearing on that day.

One of these litigants was a quiet man. He was accompanied by his Wife, who did most of the talking for him. She explained to the Judge that her husband had requested a copy of his Birth Certificate from the Town of Carver only to discover that they had no such record. This was puzzling to her and her husband because he had grown up in Carver and lived much of his life there.

He had a binder of evidence including school records, an Affidavit of one of the women present at his birth, and even military records. This man, who the Town of Carver didn't think existed, had even served our country.

Although most of you are unlikely to encounter this type of existential dilemma, I thought I'd share with you the solution. If you are ever told that your birth record has been destroyed (and you were not recently visited by your guardian angel), then you should put together just such a binder and go to the Probate and Family Court in the County in which you were born. You will have to file a Complaint in Equity under M.G.L. Chapter 46 Section 4, and after providing notice to the clerk of said Town, you will be able to present to the Judge proof that you exist (other than your being there, of course).

This is, incidentally, the same process used for mothers who give birth to a child without a physician or hospital medical officer in attendance, if the clerk of their Town refuses to record the birth. Although, that situation is probably more likely, it's not quite as interesting as the man from Carver who was never born.

Thursday, July 2, 2009

Bankruptcy Blog and other Resources

In addition to providing answers to commonly asked questions on our website, we also try to provide links to other resources where you may find further information. These links include the Court websites, other government websites, and organizations that we either belong to or may have further resources that could be useful to the public.

In addition we will often include in our Twitter accounts, links to blog posts from other blogs that we believe you might find interesting. You can click here to connect with Attorney Trask or Attorney Kelsey on twitter.

One particular resource that you should review if you are considering bankruptcy is the Bankruptcy Law Network, where we often find great blog posts on numerous questions involving bankruptcies. Here are just a few examples:

San Diego: New Ruling Allows Student Loans to be Discharged in Chapter 13! http://ff.im/-4nJBn

How Do I Find a Good Deal on a Secured Credit Card? http://ff.im/-4FnH5

Do I have to be a citizen to file a bankruptcy case? http://ff.im/-4hCit

How to Value a Car for Chapter 13 Plan “Secured Claim” Purposes http://ff.im/-4a82w

How Long Will My Chapter 7 Take? http://ff.im/-46Odg

What Happens If A Creditor Contacts Me After My Bankruptcy? http://ff.im/-3LIbV

“Stealth” Plan Provisions: Confirmation of Chapter 13 Plan Did Not Alter Domestic Support Obligation http://ff.im/-3uuIL

Thursday, June 18, 2009

Question: What other factors should I consider when deciding when I should file for Bankruptcy?

Question: What other factors should I consider when deciding when I should file for Bankruptcy?

Factors regarding the need to obtain an automatic stay will likely be dictated by your creditors, not you. The automatic stay is a useful tool in temporarily stopping foreclosure proceedings brought by your mortgage holder(s), as well as collection efforts, collection calls and lawsuits filed by your creditors, if any. This foreclosure and debt collection process generally takes a few months, not a few days, and the benefit of the automatic stay can create some additional time for the debtor to deal with logistical issues associated with preparing the bankruptcy petition, appraising assets, selling real property or finding new housing, if necessary.

In order to file for bankruptcy under any section of the Bankruptcy code (Chapter 7, 11, or 13), your federal income taxes must be filed up to the current year (2008). Other documents are necessary for preparing the bankruptcy petition and schedules, such as a credit report, current credit card statements, bank statements, and income information. If this information is not immediately available, it will take some time to collect and review. If you believe a bankruptcy filing is on the horizon, your best bet is to contact an attorney for a bankruptcy planning consultation, then begin preparing the information needed to file.

Equally important in deciding when to file is a debtor’s own ability to handle the current situation, balanced against their need to make immediate changes. Some debtors will need time to prepare for relocation to an apartment or smaller home, whereas others will be anxious to take action to save their house or get a fresh start. These factors are unique to each case, and should be discussed with an attorney before filing your bankruptcy petition.

Question of the Week: Will my new job affect my Bankruptcy filing?

I have been out of work for some time, my bills have gotten out of hand, and I need to file for Bankruptcy. I may be getting a new job soon. Will my new job affect my Bankruptcy filing?

If a would-be Chapter 7 debtor were to see a significant change in their income before filing a Chapter 7 bankruptcy, there is a risk that the debtor would no longer qualify under the Chapter 7 Means Test, and must file under Chapter 13. While Chapter 13 Bankruptcies are often effective in allowing a debtor to cure mortgage arrearages and keep their house, if the debtor’s intention is to pursue liquidation of all assets (including the house) or does not have real property to protect, your increased income would be required by the U.S. Trustee to fund the Chapter 13 plan, and not be used for other costs/expenses. In this case, a Chapter 7 Petition should be filed before any increase in income.

Friday, June 5, 2009

What do I do if my ex threatens to take our child out of the country?

If a parent wants to move a child's residence out of the country, then the same laws apply as when the parent wants to move to another state, though the evaluation by the Court may be slightly different. The removal statute is discussed at length in our previous blog: What do I do if my ex wants to move out of state with our child?.

If you are afraid that the other parent may remove the child illegally and once the child is out of the country it may be difficult to get them back, then there is still something you can do. The U.S. Department of State has a website entitled Child Abduction Prevention with many useful tips including:

1. Be aware of your state's laws relating to removing the child from your state against the other parent's wishes. This is a crime in most states and may also be a federal crime.

2. Obtain a custody order that clearly defines both your and the other parent's rights relating to the child and any limitations on those rights.

3. Be aware of U.S. Passport law, which requires the signature of both parents to obtain a passport for a child. If you are concerned that your ex might try to obtain a passport without your signature or with a forged signature, then you should apply to The Children's Passport Issuance Alert Program. You can obtain the entry form by clicking here.

4. If your child already has a passport you can ask the Court to require its surrender.

Thank you to Robert P. Schneiders, Esq. of Canton, MA for forwarding us this information on The Children's Passport Issuance Alert Program.

What do I do if my ex wants to move out of state with our child?

In Massachusetts, M.G.L. c. 208 Section 30: Minor Children; Removal from Commonwealth; Prohibition states that a child who the Massachusetts' probate courts have jurisdiction over shall not be removed from the Commonwealth without consent of both parents or Order of the Court. This statute does not apply to vacations; generally the term "removal" refers to a change of residence.

If one parent unilaterally moves out of state with the child without the permission of the other parent and without an Order of the Court, then you must act immediately to force the return of the child. If the child resides out of state for more than six (6) months then under the laws of most states (most states having enacted the Uniform Child Custody Jurisdiction and Enforcement Act, or some variation of it), that other state will now be the "home state" and have jurisdiction over the child. You should consult with an attorney about the appropriate action to bring before a Court in order to obtain an order requiring the child to be returned (which will then have to be brought to the other state and enforced, through the use of law enforcement if necessary).

If both parents do not agree to allowing one parent to move with the child to a different state, then the parent that wants to move is required to file a Petition for Removal. If the Court has already ruled on the custody of the minor child, in a Paternity or Divorce judgment, then this it typically done with the filing of a Complaint for Modification.

The standard for approval of a request for Removal is actually a two-part test as defined in the landmark case Yannas v. Fronditsou-Yannas, 395 Mass. 704 (1985). The Court in Yannas created a two-part test:

First, the parent requesting removal must first show the court that there is a "good, sincere reason" for the move. This is often described as the "real advantage test." Examples of acceptable "good, sincere reasons" are a lucrative job opportunity, significantly greater family support, or a new spouse who resides in another state. In Pizzino v. Miller, 67 Mass. App. Ct. 865 (2006) the Court found that "a sincere desire to be with a spouse is, per se, a good and sufficient reason".

The second part of the test requires the Court to evaluate whether the move is in the best interest of the minor children. Typically if the first part of the test is meant, the "real advantage" likely carries over and demonstrates that the move is also in the best interest of the minor child. Meeting the second part of the test may be more difficult, however, in the case where both parents are significantly involved in the minor child's life, such as when there is a joint physical custody arrangement.

Tuesday, June 2, 2009

What happens to payments owed to an ex-spouse in Bankruptcy?

Obligations that are considered by the Bankruptcy Court to be “domestic relations orders” are non-dischargeable and priority debts. They are defined in U.S. Bankruptcy Code Title 11 Section 101 14(A).

In summary, the term 'domestic support obligation' includes child support, alimony, or other support payment, and can include payments for housing, health insurance or other costs paid on behalf of a spouse or ex-spouse. If payments are owed and in arrears then the 'domestic support obligation may also include interest and the interest is non-dischargeable as well.

It is very important when preparing a Chapter 7 Bankruptcy to be aware that these debts will not be discharged, i.e. will still be owed after the bankruptcy.

It is likewise very important when preparing a Chapter 13 Bankruptcy to be include the 'domestic support obligation' in the Chapter 13 plan as a priority debt and to be clear about how arrears will be paid versus how the ongoing payment reduces the filer's available income. If these issues are not addressed specifically, the Bankruptcy Court may find that the Plan is not binding against your ex-spouse as was the case in In re Owen, 2009 WL 693161 (Bky.E.D.Tenn. March 13, 2009). For an excellent explanation of what happened in that case check out the following article on the Bankrutpcy Law Network: "Stealth" Plan Provisions: Confirmation of Chapter 13 Plan Did not Alter Domestic Support Obligation".

Friday, May 29, 2009

Question of the Week: What is an Abuse Prevention Order?

In Massachusetts, M.G.L. c. 209A allows the court to create orders that protect people from abuse. These orders, known as “Restraining Orders”, “Abuse Prevention Orders” or “209A Restraining Orders” prohibit the defendant not to abuse or contact and to stay away from the person who has obtained the order, and, if applicable, the person’s minor children. 209A Restraining orders may be obtained against a current or former spouse, a current or former household member, the other parent of a child, a relative by blood or marriage, or anyone with whom the person has had a substantial dating relationship. If the parties do not have one of the relationships described above, the court will not issue a 209A Restraining Order.

Obtaining a 209A Restraining Order is a civil proceeding, rather than a criminal proceeding. That means that the person seeking the order must prove by a preponderance of the evidence that they have a "reasonable fear of imminent serious physical harm". Put another way, the person seeking the order must demonstrate that the abuser has caused or threatened to cause physical harm, or has placed the victim in fear of imminent serious physical harm. Violation of a 209A restraining order is a crime, provided the restrained person knew of the restraining order.

Of course, if you are facing an imminent risk to your safety, call the police or 911. Your immediate safety should be your first concern. While the police can alleviate the immediate danger, calling the police to report abuse does not automatically result in a restraining order. If the immediate danger has passed, then you should consult with an attorney as soon as possible, and attend Court to request a Restraining Order by filing a Complaint for Protection from Abuse.

Monday, May 18, 2009

Financial Crisis? You are not alone.

Often people who are deep in debt, are more afraid to confront the reality of their situation than anything else. That fear can lead people to do things they never thought they would do: to stop opening their mail, to stop answering the phone for fear of dealing with bill collectors, or even to lie to their family and friends.

It is important to understand that you are not alone. You are not the first person to go through a crisis and there are resources out there to help you.

To read about how even an economic reporter fell into the trap of overusing credit check out this New York Times article: http://tinyurl.com/qukwpb.

Saturday, May 9, 2009

Q of the Week: What will I keep if I file for a Chapter 7 Bankruptcy?

When filing for Bankruptcy certain property of the debtor is exempt from the Bankruptcy estate, which means that it is not subject to being taken by the Trustee and used to pay your debts.

When filing a Bankruptcy as a resident of Massachusetts a debtor can choose to use the exemptions allowed under either State or Federal law, but you must choose one or the other. There are many exemptions that are similar under both schemes, such as the exemption of most qualified retirement plans. A table of the maximum exemptions as of April 14, 2009 in categories where the state and federal exemptions differ significantly can be found here. Please note that these figures are subject to change and you should consult with an attorney to obtain the most current figures and to decide which option you should choose.

Wednesday, May 6, 2009

College: Is it the Right Choice?

In Massachusetts, Probate and Family Court Judges have the authority under the child support statute to order divorcing parents (or unwed parents of children involved in paternity cases) to pay for college education expenses for their children.

Unfortunately, this can lead to expensive litigation when one parent is unwilling to accept (or to tell their child) that certain colleges are too expensive for their family budget.

Even worse, it seems to have become a foregone conclusion that most (if not all) children should go to college. Check out these great thoughts from The Imperfect Parent Blog, too many people (especially in the Probate & Family Court) are afraid to say this:

Kids, Don't Go To College:

"Why are we pushing college on every kid when not every kid is cut out for it? There’s no shame in not going to college, in fact, going to college just may be a waste of time for most high school grads. And if you listen to some talking radio heads, it may just be a colossal waste of money too.

Currently around 65% of high school students are college-bound and some experts are calling for a re-examination of college level education and what it actually gets you these days. Furthermore, as more and more jobs are now being outsourced overseas, a college degree creates a certain dichotomy — while corporations expect and require degrees for jobs in which college degrees aren’t even necessary, like sales positions, conversely, skilled laborers or technicians only require more expedient training through trade schools. One clear benefit of these tradesmen skills is that most of them can’t be outsourced overseas.

For example, I’m an Account Manager for a hospital. Nothing in my 50k waste of a college education prepared me for what I’m doing. What it did do is get me a foot in the door for an administrative position some 17 years ago, where I worked my way up. The rest has been on the job the training. Never have I had to pull from my college textbooks, lectures, assignments or tests to understand how to manage coordinating people’s health benefits in my current position. One has to wonder, what is the point of a B.A. if all you need for is to weed out people that are perhaps more qualified but couldn’t afford to go to college?

Often times I regret not just going to a trade school or becoming a nurse, medical technician or even a paralegal. I could have completed many of those certifications in 2 years or less, instead I wasted 5 years (yes, I was on the 5 year program) of balancing missing classes to hang out in Grant park with my friends while still meeting the minimum requirements to get passing grades.

Welders, electricians, carpenters, plumbers — their all jobs that can’t be outsourced, yet my job can be. So who’s the real chump here?

As www.bluecollarandproud.com points out, these tradesmen are not your grandparent’s skilled labor workers. Many of these trade schools require some critical thinkers, like welders, who deal with complex mathematical equations to figure out trajectories and angles.

While not all kids are cut out for the trades just as all kids are not cut out for universities, the future of the tradesmen just might translate to job security and skills that seem to be lost on younger generations. When and if my children want to go to college, I will be there to support them emotionally and financially (as much as I’m able), but I won’t make them go. I hope they understand all their options, unlike my parents, who pretty much said, “Go to college or I’ll never speak to you again.” "

Monday, May 4, 2009

One Court instead of Two for Domestic Abuse Cases in Norfolk County – A Pilot Program

Beginning May 4, 2009, Norfolk County will start a pilot program involving the interdepartmental transfer of certain abuse prevention proceedings. In plain English this means that 209A Restraining Order cases opened in a District Court in Norfolk County may be transferred to the Norfolk Probate and Family Court, if there is already an action pending in that Court.

EXAMPLE: Whitney and Bobby are married and live in Dedham. One night they get into a fight and Whitney calls the police. Bobby is not arrested but is escorted from the home by the police and Whitney is provided with an emergency 209A Order for Protection from Abuse (commonly called a Restraining Order). The Restraining Order requires that both Whitney and Bobby show up at the Dedham District Court the next day to go in front of a Judge who will decide whether the Restraining Order should be extended.

After a hearing the Judge extends the Restraining Order for two months ( “a cooling off period”). That afternoon, Whitney goes to the Norfolk Probate and Family Court in Canton and files a Complaint for Divorce. Whitney also files a Motion for Temporary Orders asking a Family Court Judge to give award her custody of the children and order Bobby to pay her child support.
At the hearing on Whitney’s Motion for Temporary Orders, Bobby asks for visitation because he hasn’t seen his children since the Restraining Order went into effect. The Probate Court Judge orders physical and legal custody to Whitney with a visitation schedule for Bobby.

Under the current rules, there are now two Orders from two different Courts that are different. The problem for Bobby is that the Dedham District Court Order is the one that the police will follow. If Bobby tries to pick up his children for visitation he may be arrested unless he and/or Whitney go to the Dedham District Court and ask the Court to amend the Restraining Order.

The pilot program would give the Norfolk Probate and Family Court Judge the power to transfer the Dedham District Court 209A Restraining Order case to the Norfolk Probate and Family Court. This means that when the Family Court Judge makes a decision it will apply in both cases and amendments can be made to the Restraining Order immediately to be consistent with the Probate Court orders.

This benefits Whitney and Bobby by having only one court for them to visit, allowing for less court hearings total, and by having one Judge who can hear all issues and make decisions that are consistent and take into account both the safety concerns of Whitney and the best interest of the children.

The full language of the Order can be viewed here. Under the pilot program, the transfer can be initiated by motion by either a party or sua sponte by the Probate and Family Court judge. The parties will have an opportunity to be heard on the question of transfer.

The pilot program will be for one year and will be reviewed after six months by the Chief Justices of the Probate and Family Court and the District Court.

Thursday, April 30, 2009

Why doesn't my agreement say [fill in the blank]?

I recently updated by iTunes software and saw the following warning:

"You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design manufacture or production of missiles, or nuclear, chemical or biological weapons." (iTunes EULA: Section 10, Paragraph 8)

Apparently, Apple is worried I am going to use my newest edition of iTunes to manufacture my own MIRV's. (There's an app for THAT?!) I suppose it's possible to figure out a way to launch a first strike from an iPhone (it can do practically everything else), but the likelihood of me trying, or even wanting to is, as we say, de minimus.

A good lawyer will go to great lengths to make sure that his client is protected, but sometimes, we fail to distinguish between "what might possibly happen" and "what will probably happen". A good attorney should not try to insulate you from every abstract contingency; rather, he or she should assist you in identifying risks, then recommend the things you can do to minimize those risks without the need for cumbersome arrangements or worse, confusing and unenforceable agreements. Keeping a legal solution simple and straightforward does not mean leaving you exposed to risk, loss or harm - it means making sure you are protected and still able to improvise, adapt and overcome what life throws at you after your case is complete.

Monday, April 27, 2009

Mandatory Discovery Expanded to Include Separate Support and Paternity Actions

Effective May 1, 2009, Supplemental Probate and Family Court Rule 410 will now require mandatory self-disclosure in Paternity and Separate Support cases similar to that already required in Divorce cases.

Under the old Rule 410, parties in divorce cases are required to, within 45 days after the date of service of the Summons, serve on the other party specific documents designed to disclose the basic financial information necessary to settle the case. This includes tax returns for the past three years, last four (4) paycheck stubs, bank account statements, health insurance documentation, retirement account statements and more.

Under the new Rule 410 effective May 1, 2009, parties in Divorce and Separate Support cases are required to, within 45 days after the date of service of the Summons, serve said documents (tax returns for the past three years, last four (4) paycheck stubs, bank account statements, health insurance documentation, retirement account statements, etc.). In addition, new Rule 410 requires parties in Paternity cases to produce tax returns for the past three years, last four (4) paycheck stubs, and health insurance documentation, within 45 days of service.

The old rule was enacted to save parties valuable time and energy filing discovery requests for documents that are likely necessary in every divorce case. Unfortunately, the failure of the old rule to include paternity and separate support cases meant that we still had to file the requests in those cases (sometimes just requesting all documents required under Rule 410).

The new rule expands this convenience and is a welcome change, which will hopefully save lawyer's time and client's money.

Lawyers particularly vulnerable to E-mail Scams

By now most of us have heard of the Nigerian/Check Cashing E-mail scams (hopefully). The basic outline of the scam is as follows:

You receive an email that offers to assist you in obtaining money that belongs to you, or offers to buy something from you for a price greater than you advertised it for (typically received when you put something for sale on Ebay or Craigslist or similar sites). The hook is that they are offering to pay YOU money. Once you receive the check and cash it, you just have to send them back a portion of it. The trick is that the check is a bad check, even though your bank may let you draw funds on it after three days. These out of state, or out of country bank checks take advantage of a banking loophole that most banks will allow you to draw on a check after three days, but the bank doesn't actually receive the funds on the check for up to ten (10) days. Once the check bounces, the bank will hold you responsible for the money (often just taking it out of your account).


A Houston lawyer learned the hard way that lawyers are not immune to these scams. The scam works essentially the same way, but instead of offering unknown riches or an unexpectedly high price, the scammer offers the lawyer something much less unusual, a case. Of course, if the case sounds too good to be true it probably is, but as lawyers and business people we feel obligated to respond to every client inquiry.

I was inspired to write this because not long after our firm posted a website, we received a seemingly typical inquiry regarding a collections case. The redacted inquiry follows:

"Attention Counsel:

I have previously sent you an email; please confirm the receipt of this mail due to the urgency of this matter. If you are not in position to represent us at the moment kindly advice immediately. After a careful review, we decided to contact you to represent our company in North America. ---------------- Ltd is a manufacturing company in Asia.

We would require your legal representation for our North American delinquent Customers. We are of the opinion that a reputable attorney is required to represent us in North America in order for us to recover monies due to our organization by overseas customers, and as well follow up with these accounts. In order to achieve these objectives a good and reputable law firm like yours will be required to handle this service.

We understand that a proper Attorney Client agreement must be entered into by both parties.
This will be done immediately we receive your letter of acceptance.

Awaiting Response.
Yours Faithfully,

I immediately become suspicious due to how vague the message was, and the fact that they had not previously sent me an email that I was aware of. When I Googled the company, however, they had a real website that looked legitimate on first glance. What seemed odd when I spent some time on their website was that I could not find a phone number to call.


As lawyers we have to be extra extra careful with the retainer's paid to us by our clients. We are required to keep them in a specifically designated Client Funds account (in Massachusetts called an IOLTA account) and any co-mingling of these funds with non-client funds can mean serious trouble with the Bar.

If a lawyer deposits a scammer's bad check in their Client Funds Account and then pays out on that check, that lawyer is essentially using other clients' money to pay the scammer, a BIG MISTAKE.


First and most importantly, never pay out on a check until after ten (10) days has passed, especially if you don't know the bank and/or it is not a local bank (if it is a major or local bank then you can call them directly, and at least confirm that the check is good, never call a number on the check because it could be a fake).

This can be difficult for a lawyer who has a "client" asking them to pay funds out, especially if, for example, the "client" was asking for a return of their retainer check because they wanted to hire another attorney. You can prevent having to deal with this type of misunderstanding by warning a client when they give you a check of the delay, and by notifying them of the ten (10) day waiting period in your Retainer Agreement.

Second, you can try to avoid scams by being diligent about screening clients. Don't let a client hire you by e-mail, talk to them on the phone and meet them in person. Even if it requires traveling to another country, if it's a potentially significant client shouldn't you meet them in person anyway, and if they have a business, visit their operation? Often just sending an adequately inquisitive reply email asking for more information can sniff out a scam. Here's a sample of our reply to the above inquiry:

"Mr. --------

First off, I would like to note that I have not previously received an email
from you. Regardless I am happy to respond to your recent email, copied below.

I am licensed as an attorney in the Commonwealth of Massachusetts only and am therefore only able to practice in Massachusetts. If you have any collection suits from customers in Massachusetts then I would be able to handle those matters for you. Please provide me with a phone number or call our office at (508) 655-5980 to discuss these matters directly.

I would also like to note that your company, -------------------------- Ltd, is not registered with the Secretary of State of the Commonwealth of Massachusetts. Please be aware that if you perform any business activities with customers in the Commonwealth of Massachusetts then you should immediately register as a foreign corporation with the secretary of state. The forms and information relating to said registration are available on the Secretary of State's website at http://www.sec.state.ma.us/COR/coridx.htm .

Please notify us once you have completed this registration or if you have any questions regarding same.

In addition, as I stated above, I would only be able to work with your company if you had business dealings with customers in Massachusetts. Can you please provide me with more information about your potential collection suit(s) so that I can appropriately evaluate whether we are able to take the case on a contingency or hourly rate basis.

In addition, please provide us with the names and addresses of any business or individual customers that you are seeking to initiate action against. This information will be kept confidential but is necessary for us to ensure that we do not have any conflicts (i.e. we may have represented one of your customers in the past and would therefore be precluded from suing them).

Thank you for your attention to these matters and if you should have any questions or concerns. Looking forward to potentially working with you, I remain,

Very truly yours,

Justin L. Kelsey, Esq."

Of course, the reply I received made it clear this was a scam, because for starters they didn't answer any of my questions. For more information about electronic scams or to report a scam check out the FBI's Cyber Investigations website.
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