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Showing posts from December, 2010

Can I Sleep with my Wife or Husband during our Divorce?

This question was recently posted on Avvo.com and as a regular contributor I answered the question on that site . Since I have received a positive response to my answer I have decided to reprint it here: Question: What are the rules about husband and wife sleeping together while they are getting a divorce? One of the pair doesn't want the divorce and is willing to work hard to turn things around. Right now there is no hope but I want there to be and am praying for a miracle. (spelling errors corrected) Answer: There are no court rules or statutes that prevent a husband and wife from sleeping together before, during or after a divorce. In fact, the only law in Massachusetts preventing people from sleeping together is a prohibition on adultery which is not enforced anyway. However, it could be extremely unhealthy for you to continue to sleep with your spouse if you are hopeful that it will result in a reconciliation but your spouse is adamant that it will not. In Massachuset

Is it a Crime if my Spouse Reads my E-mail?

The short answer is that your spouse has probably not violated any law by reading your e-mail, even if it is against your wishes. The law of technology is constantly changing, though, and you may want to think twice before snooping in your spouse's email. The current law varies from state to state and you might be subject to criminal charges as the law catches up with technology. In Massachusetts, the First Circuit Court of Appeals in 2004 ruled that e-mail snooping was not a violation of the wire-tapping statute, and therefore not a crime under that law. If combined with concerning communications, e-mail snooping may be enough to trigger the criminal harassment statute in Massachusetts, though this would depend more likely on the nature of the other communications. There is a Federal Law, the Electronic Communication Protection Act (ECPA) , that prohibits interception of an e-mail while it is being transmitted. However, ECPA does not prohibit snooping in your e-mail inbo

Scaling the Summit Word Cloud

Wondering what we've been writing about. Below is a word cloud generated by Wordle displaying our most written about subjects:

Should Parenting Plans include Holiday schedules?

As discussed in a previous post a Parenting Plan is a comprehensive agreement which sets out both the time that children will spend with each parent as well as the rights and obligations of each parent to the children and the other parent during their parenting time. Parenting Plans can be made specific or flexible depending on the requirements of each case but usually contain a base schedule. In most cases it is also advisable to supplement the base schedule with a holiday schedule. At Kelsey & Trask, P.C. we have a template holiday plan that includes proposed schedules for many of the typical holidays that parents and children enjoy sharing together. However, we often encourage our clients to try and create their own holiday plans based on their family traditions, trying to keep as much of the family traditions intact for children already experiencing many changes. If you are a separated or divorcing parent, we suggest that you pay special attention to how your children expe

Why You Should Try to Avoid Divorce Court?

Although sometimes necessary, appearing in Court is often a lengthy, expensive, and disappointing trial (pun intended). Any combination of failed preparation, miscommunication between client and attorney, or incomplete discovery can cause the process to result in imperfect and incomplete Orders. Sometimes just the limitations of the court process (such as the limited time of the Judge to hear each case) can result in frustrating court appearances. In order to avoid unnecessary costs, you may want to consider alternatives to litigation such as Mediation or Collaborative Law. For more information about those processes read our past posts: What are the Advantages & Disadvantages of Mediation Dramatic Impact of Mediation on Children of Divorce Mediation, Collaborative Law or Litigation: What's your Vote? - A 3 Part Post: The Cleavers Divorce: Collaborative Law, Mediation or Litigation - Part I The Huxtable's Divorce: Collaborative Law, Mediation or Litigation -

The 15 Most Expensive Divorces

There is very little that the average person can say they have in common with celebrities. We don't get chased by the paparazzi, we don't have personal chefs or personal trainers, and we can't get lost in our homes. But when it comes to celebrity marriages, they are just as likely (if not more likely) to end up in divorce court. Of course, when a celebrity, CEO or media mogul gets divorced the financial scale of their marital estates is very different than the average divorce case. Below is a graph of the top 15 most expensive divorce payouts, ranging from 80 million to 1.7 billion dollars: Sources: Wikipedia List of Most Expensive Divorces The Telegraph Article: Tiger Woods: the world's top ten highest divorce settlements Burns & Associates: Top 15 Most Expensive Divorces Of All Time

Does a Criminal Record affect Child Custody?

If one of the parents in a custody case has a criminal record, the types of crimes on their record could have an effect on their chances of obtaining custody. In custody cases the issue is always going to come down to whether or not the best interests of the child might be affected. In the most extreme case, in which one parent has been convicted of first degree murder of the other parent, the law specifically prohibits visitation with the children until they are of a suitable age to assent. Similarly, but to a less serious degree, in making custody and visitation determinations the court will consider crimes that would cause one to question the fitness of a parent. These types of crimes would obviously include any violent crime convictions which could call into question whether the children would be in danger around a parent who has shown themselves to resort to violence when faced with conflict. In addition, drug and alcohol abuse offenses would call into question a parent&#

How Much Will my Divorce cost? How Can I Pay for it?

The one question that everyone asks at the end of their initial divorce consultation is "how much is this going to cost?" And with good reason, because cost is a valid concern, especially for many of our clients who have lower or middle class incomes and lifestyles. Unfortunately, the answer is vague and unsatisfying because it depends on so many factors. I try to provide clients at the initial consult with some idea of what I expect the range to be for their case based on what I've learned during that brief time. But some of the factors are truly unpredictable, most significantly how much the other side wants to fight. There are many ways to reduce the cost of a divorce. In some cases, where both parties are well-informed and willing to cooperate, mediation can be a cheaper option then hiring two lawyers for the whole process. Even if you both have attorneys, following the court Rules and providing documents and other information in a timely fashion can help red

What's in a Name? - The Problem with Labeling Parents "Custodial Parent" vs. "Visiting Parent"

It's difficult for people who haven't been involved in a divorce case to understand why divorcing spouses can be so mean to each other, especially when children are involved. But the emotions that couples experience when going through a divorce can be like riding a roller coaster. Many experts describe the emotional process of dealing with a divorce as similar to that of dealing with the death of a loved one, including all the same stages of grief: denial, anger, bargaining, depression and acceptance. When divorces involve children, these emotions are amplified by parent's fears that they will "lose" their children. This is why the labels of "custodial parent" and "visiting parent" carry so much baggage with them, and can make people fight when they don't need to. When it comes to figuring out the best way that both parents can remain involved in the lives of their children, we believe it is more important for clients to focus on what

What if I want to try Reconciliation? Is there a way to protect myself?

One of the questions that I ask clients in our free 1-hour initial divorce consultation , is whether or not they believe their marriage is irretrievably broken down with no chance of reconciliation. This is the standard in Massachusetts for a Judge granting a divorce. Many potential clients, despite having scheduled a divorce consultation, are actually unable to answer this question because there is still some "chance of reconciliation." In these instances I explain their rights in a potential divorce case but recommend that they try counseling and not come back to my office unless they are sure about their answer. For some, they fear that trying to reconcile will put them in a vulnerable position financially and for those instances there is now a solution: Post-nuptial agreements (also called marital agreements) allow married couples to make contracts that will control what happens if they get divorced. A post-nuptial agreement can resolve the financial concerns and as

Alimony Reform: Stay Tuned!

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 . As previously reported on this Blog , there is an ongoing (and at times heated) debate in Massachusetts right now over how to amend the alimony statute. Despite how long this debate has been going on, it appears that we may finally be closer to some changes. The Legislative Task Force appointed by Newton Senator, Cynthia Creem, is reportedly close to a recommendation which could have the backing of Judges, attorneys and at least some of the reformists. Although the final Bill is not complete yet, it will likely be filed prior to the deadline for this session, January 21, 2011, and include provisions relating to guidelines and duration as recomended by the Joint Task For

Are Gifts from my Family considered Income by the Family Court?

The following is a joint Blog Post prepared by Justin Kelsey, Esq. of Kelsey & Trask, P.C. (co-author of Scaling the Summit: A Family Law Blog ) and Danielle G. Van Ess, Esq. of DGVE law , LLC (author of the Massachusetts, Wills, Trusts, and Estates blog). The Judges in the Probate & Family Court have a lot of discretion to decide what constitutes income when the Court is considering child support or alimony. According to M.G.L. c. 208 s. 34 , the court can consider "amount and sources of income... and the opportunity of each for future acquisition of capital assets and income" when dividing property or awarding alimony. This language obviously leaves a lot of leeway for the court to consider all "sources of income" including potential "future" income. Similarly, the Massachusetts Child Support Guidelines indicate that the court can consider "gross income from whatever source regardless of whether that income is recognized by the I