Monday, August 30, 2010

When a Facebook Friend Request is Against the Law

Two weeks ago, a Florida man was arrested for logging on to his Facebook account and requesting that his estranged wife list him as a "friend" on the popular social networking website, Facebook. Of course, ordinarily requesting that someone be your "friend" on Facebook is not an arrestable offense, but it may be if it is in violation of a restraining order.

While it is important to realize that the actual act of requesting that someone be your Facebook "friend" may seem completely innocuous, a judge may have little patience for it if there is an outstanding restraining order between the two individuals. If you are a party on either side of a restraining order, contact online, such as a friend request, instant message, email, or otherwise, is considered to be contact which may violate "no contact" provisions of most restraining orders.

Tuesday, August 17, 2010

Follow Up Story: No-Fault Divorce is now the law in all 50 states!

As discussed at length in a previous post ("Is No-Fault Divorce a Good Thing? It may soon be the law in all 50 states."), pending legislation in New York would create a no-fault divorce statute in that state. Until recently, New York was the last state which still did not have a no-fault divorce option (without a significant waiting period).

The signing of the new law by Governor David Paterson has now brought New York up to date with the status of divorce law in the other 49 states. To read more about the new New York law read "No-Fault Divorce Signed into Law in New York" which also contains the text of the law.

Review our previous post for discussion of the many benefits of no-fault divorce.

Thursday, August 12, 2010

Can I start dating during my divorce?

There are two ways to ask this question: Can I start dating while my divorce case is pending? and Should I start dating while my divorce case is pending?

If you ask five different attorneys whether you should start dating during a divorce, you will probably get five different answers but here is ours:

From a technical legal standpoint, adultery in Massachusetts is still a crime. Although it is almost never prosecuted it is important to note that if you engage in an intimate relationship while still married you are technically violating Massachusetts law and this could be brought up in your divorce case.

From a more practical standpoint, as many of my clients have heard, I have a saying that goes "Don't live your life for your divorce case." By that I mean that you have to still live your life and make choices that are good for you, and not just good for your divorce case. But you also have to recognize that choices have consequences.

In this instance if you have met someone who truly makes your life better, I don't believe it is my place as your attorney to tell you that you shouldn't pursue that relationship. However, you should be aware of the potential consequences so that you can make an informed decision about whether it would be more prudent to wait until the divorce process is over.

You can minimize the potential consequences through the use of common sense. For example, one possible consequence of starting a relationship is the emotional impact on your spouse. As discussed in a previous post, the discovery of an extra-marital relationship can cause some people to become very upset, becoming more difficult to deal with and sometimes even impossible to settle with. You can mitigate this possibility by being discreet, and not rubbing the new relationship in your spouse's face (for instance by bringing the new significant other to court with you).

Another example relates to the finances. Any funds spent with or for a dating relationship during a divorce process could be seen as wasting of marital assets and will likely become an issue in the division of assets. Similarly if support is an issue any funds that can be spent on a dating relationship could arguably be available for support of your former spouse. You can minimize this issue by not spending any money on the new relationship until after the divorce is final.

Finally, if you have children, whether or not you choose to start a new relationship during the divorce process or afterwards you should give special consideration to how this will affect your children. It is universally accepted that introducing anyone new to your children at the early stages of a relationship is not healthy for the children, especially if the likelihood is that many such relationships will not work out. In addition, trying to introduce anyone to the children (even someone you are serious about) during the divorce process can be traumatic because the children are already dealing with a significant transition in their lives. If you are not sure the best way to handle introducing children to a significant other when they become significant, you should consult with a trained professional such as a psychologist or psychiatrist.

When can I (or will I) get re-married?

According to a Boston.com article a woman in Ohio learned via Facebook that her Husband had re-married, despite still being married to her. While the article suggests that there is some disagreement about whether or not the original marriage was valid, it's clear that the Husband should have waited to have the validity of his first marriage determined prior to getting married again. He has risked having his second marriage void, if the first is found to be valid.

This situation is not typical because most clients seeking to end a marriage state that they are not in a rush to get married again. However, according to the U.S. Census Bureau between 66 and 75% of people who get divorced get remarried. Many of these remarriages are less than one year after the divorce.

At the very least you are required to wait to get remarried until the day when you are officially divorced. In Massachusetts there is a waiting period (90 days for Complaints for Divorce, and 120 days for Joint Petitions) until a Divorce becomes final after the hearing. A Judgment of Divorce Nisi does not become absolute until 90 days later, and you are therefore technically still married during that waiting period. If you want your second marriage to be valid you must wait at least that long before getting remarried.

Although this may seem like an unusual problem, since many couples are now choosing long-term separation over divorce, the eventual divorce may occur well after the marriage has practically ended. In fact, the new relationship is more often the impetus behind the ending of a long-term separation. For a discussion on the other issues raised by long-term separation vs. divorce check out our previous post.

Sunday, August 8, 2010

Private Browsing: You don't need Congress' help to protect your privacy.

Two U.S. Congressman recently proposed an Internet Privacy Bill which would require websites to notify clients of all information that the website creates or collects, including cookies, session logs, etc.

Regardless of how this bill fares, it surprises me that so many people are unaware that there is already a way to browse the internet without creating a record. Of course you should avoid providing your information on the internet except to trusted sources, but you may also want to avoid other internet records created simply by browsing a website.

When you browse a website, it may create records within your browser to improve your browsing experience (such as cookies) and it also creates a record in your browsing history. Both of these options can be turned off in browsers, but this could hinder your everyday internet usage.

Instead, when browsing sites that you don't want a record kept for (such as a divorce attorney's website) you can use Private Browsing options available in most browsers. These linked articles describe using Private Browsing in Internet Explorer 8, Google Chrome, Firefox, and Safari.

Saturday, August 7, 2010

Divorce or Long-Term Separation: A Comparison.

According to a recent New York Times article, more couples are staying married in long-term separations instead of getting divorced.

There can be some advantages to staying married, even if separated. For some, their religious or family obligations make divorce impractical. For others, financial considerations can warrant staying married. If a couple continues to share finances, it can often be beneficial (at least for one of the parties) to stay married. But there are risks as well.

In Massachusetts, there is no such thing as a legal separation. This means that if you remain married, even if separated, then there are certain obligations and liabilities that continue. Although there is an action that allows for support in a separation (called a Complaint for Separate Support, Custody and Visitation), this action deals only with the issue of support, custody and visitation for parties living apart. A Separate Support action does not separate assets or debts, and does not address the ongoing obligations, such as joint liabilities.

Depending on the reasons that two people are staying together, long-term separation may make sense, but if your marriage is in reality broken down, you should at least consult with an attorney to know what effect long-term separation could have on your legal rights and obligations. As a simple example, property division and spousal support obligations can be significantly different based solely on the length of the marriage. If you are separated but remain married for a long period of time you could therefore end up with a completely different resolution if divorce was truly inevitable.

Friday, August 6, 2010

Client Choice: Flat Fee vs. Hourly Rates

There are many advantages and disadvantages to flat fee representation. The advantages include knowing the total cost in advance (which allows for better planning), understanding the full commitment at the beginning of the representation, and a resulting likely reduction in client stress. Because of these advantages many attorneys are pitching the fixed fee model as a revolution in client billing.

The problem with this revolution, though, is that firms that are switching to fixed fee billing are making the same mistake that the traditional hourly billing model makes. These firms are assuming that they know what is best for their clients.

I often tell my clients that they set the goals, and my job is to tell them whether I can meet those goals or not. If I think we can meet the goals, then my job is to use my knowledge of the court process and negotiation to try to reach those goals. In the same way that I do not believe that I can set a client's goals for them in a case, I don't think that I should set their financial goals for them either.

The main disadvantage of flat fee billing is that both the attorney and the client take a risk. If the client refuses to settle the case, or the other party refuses to settle, and the case is litigated, the attorney will likely spend more time than they assumed when quoting the fixed fee. The attorney can accept this risk because they represent multiple clients and the cases that settle quickly will outweigh these cases. The client's risk, however, is that the flat fee is more than they would have spent if their case settles quickly. The client's gain is the settlement, but they do not recover for this risk in other areas of their finances. The law of averages favors the attorneys.

Do the disadvantages outweigh the advantages? Isn't that for the clients to decide? After all, it's their money. That is why at Kelsey & Trask, P.C. we offer both hourly rate representation and flat fee billing. Call us for a one hour consultation at (508) 655-5980 and let us know if you are interested in a flat fee quote or hourly rate billing (or learn about both options).

Thursday, August 5, 2010

Divorce is not a Four Letter Word

As part of small talk when meeting new people we are all often faced with the question: What do you do? And, not surprisingly, answering "I'm a divorce attorney" is usually met with uncomfortable silence, and then the even more uncomfortable questions and comments:

That must be hard. How do you deal with such sad situations? How do you keep doing it? And so on.

People ask these questions because when they hear "divorce", they think about sadness, anger, affairs, breakups and all of the reasons why we never want to experience divorce in our own life. What they don't think about, though, is what the role of a divorce attorney actually is.

Divorce doesn't have to be a four letter word. In fact, divorce should be thought of as a process. Divorce begins with sadness and anger, but it often ends with relief. I view the job of a divorce attorney as the same as any other attorney. People bring a problem to my office and my job is to bring them to a solution. That problem is that their marriage has broken down before they come to my office and they don't know how to pick up the pieces. Hopefully, when they leave my office clients are no longer focused on the breakup, but instead focused on the future.

I'm not trying to convince anyone that divorce is a good thing. But if a marriage is over, getting through the divorce and rebuilding your life to a point where you can hope again is a good thing.

Wednesday, August 4, 2010

This is your life, but it’s my job. And that’s a good thing.

Many people hire a lawyer for their divorce case simply because they are afraid to navigate the Court system by themselves. Rightfully so, people often fear that they will be taken advantage of or make mistakes if they represent themselves. But hiring a lawyer for your divorce case has other benefits as well.

I often explain to my clients that there are three benefits to hiring a lawyer.

1. The first benefit is the most obvious to clients. It is the peace of mind that comes with knowing you have hired an expert who will ensure that your rights are protected. We accomplish this by explaining those rights to you, by helping you understand any documents before you sign them, and by enforcing those rights in court when necessary.

2. The second benefit is the practical side of the first. We are able to enforce your rights and advise you about them, because of our training and experience as lawyers. We know about statutes and case law that you do not, and we know the process of the court system, such as what forms to fill out, who to talk to in scheduling, etc.

3. The most overlooked and final benefit of hiring a lawyer is what the title of this blog is referring to. The third benefit of hiring a lawyer is the simple fact that we are not you. Especially in a divorce case, the issues involved are emotionally charged and it is impossible for an individual to separate that emotion from the facts and look at their case objectively. Even divorce attorneys hire other divorce attorneys when they get divorced. Just knowing the law and the court system isn't enough to navigate a divorce successfully. You need an objective adviser, who can tell you when you are letting emotion cloud your judgment.

For example, many clients are very upset when their spouse has met someone else. It is human nature for us to focus on the affair and want that affair to be discussed in Court, and to be a major factor in the divorce evaluation. But any good family law attorney in Massachusetts will explain that conduct in the marriage (such as an affair) is only one of the many factors in a divorce case. Concentrating only on that fact, to the exclusion of the other factors, would be a detriment to your case.

Because this is only my job, and not my life in the Judge's hands, I am able to objectively evaluate what factors need to be presented to the Judge. And in the end, that objectivity benefits you, the client.

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