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.
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