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Showing posts from January, 2011

Another Benefit of Mediation: No Waiting in Court

There are advantages and disadvantages of mediation and you should consider both in deciding whether mediation is right for your case. For instance, many people choose mediation because they believe it will be cheaper. In all cases that may not be true, but there is a difference between cost and value. Even if the cost of your mediation is higher than you were expecting, you can at least be confident that the time you were charged by your mediator was time spent on moving your case forward. Unfortunately this is not always the case when you go to Court. Because there are so many other people seeking relief from the Court, I often have to explain to clients what I call "Hurry up and Wait." You have to be at the courthouse at your appointed time for any Motions, Pre-Trials, Contempt hearings, Trials, or other hearings. But there will likely be other cases waiting for hearing at that same time. And even if you are right on time, you will still likely spend hours waiti

How can I Support or Fight the Alimony Reform Act of 2011?

The Alimony Reform Act of 2011 is legislation currently pending in Massachusetts which would significantly change how the Courts here handle alimony cases. The proposed bill would limit the duration and amount of alimony, exclude payor's second spouse income, and end (or reduce) alimony upon cohabitation and retirement. Of course, these changes are controversial and in many cases favor payors. On the other hand, payors will argue that the current law unreasonably favors recipients. Whether you are in favor or against the Alimony Reform Act of 2011, if you are a resident of Massachusetts you should make your opinion known. Contact your State Senator and Representative and tell them whether you want them to become additional sponsors or oppose the bill. If you want to know who your representatives are click here. Massachusetts Alimony Reform , an organization in favor of the bill (obviously given their choice of name), has provided a sample letter to send if you also favo

The Alimony Reform Act of 2011

On January 18, 2011, Senator Gale D. Candaras (D - Wilbraham) and Representative John V. Fernandes (D - Milford) filed An Act to Reform and Improve Alimony . The Act proposes sweeping changes to the Massachusetts alimony laws, and has already been endorsed by the Massachusetts Bar Association. As we discussed in an article on December 3, 2011 , a Legislative Task Force was created to recommend changes that would reach a consensus between Judges, attorneys and the alimony reform advocates. The Act proposed by Senator Candaras and Representative Fernandes is the result of that Task Force's hard work and according to the Press Release, the Act has the unanimous support of all members of the Task Force. Kelsey & Trask, P.C., the authors of this Blog, have created a website that summarizes the provisions of the Act and provides a calculator based on the General Term Alimony recommendations: MassAlimonyFormula.com . Here are some of the highlights: M.G.L. c. 208 s. 34 Curr

What does the Judge Think of your Petty Arguments?

One Judge in Canada may have gone too far in admitting what he really thinks. A recent Time article highlights the lengthy decision of a family-court Judge in Ontario who called out a particularly vindictive couple for their abhorrent behavior. Although the decision was probably well-deserved the Judge may have let his frustration with the couple distract from the typical judicial demeanor. Just because other Judges don't typically write decisions so bluntly, doesn't mean they don't have the same thoughts about some of their cases. In fact, having been involved in a number of cases which included unnecessarily petty behavior by the litigants I am sure the Judges in those instances wished they could write a decision like this. If common sense doesn't make you stop your vindictive or angry responses in a divorce case, then at least try to remember that the Judge will hear about this behavior and it can only hurt your chances of convincing the Judge of the merits

Are Sex Tapes and Indecent Photos Marital Property?

Unfortunately, I have had the uncomfortable experience of dealing with indecent photos and sex tapes in a few cases. Although divorcing clients will sometimes consider these photos or videos negotiating chips, these tactics can often backfire. In a recent NY Times article , a couple's argument over alleged threats to expose their sex tapes have made their divorce a public spectacle. In a divorce case, my advice has always been simple and common sense on this issue. Photos of individuals should be returned to those individuals. Videos or photos of multiple parties should be destroyed by mutual agreement on method. Any other outcomes will leave one party exposed and potentially hurt or angry. These types of emotions lead to difficult, unsettleable, and therefore expensive and lengthy cases. In the long run, the only people who profit from difficult cases are the lawyers. So if you want to simplify your divorce case, then deal with a potentially distasteful past in a tastef

Will Child Support Change if I have a Second Family (or Eighth Family)?

The Child Support Guidelines in Massachusetts include the following provision: "Obligations to a subsequent family may be used as a defense to a request to modify an order seeking an increase in the existing order but such obligations should not be considered a reason to decrease existing orders." In short, this means that you cannot request that the Court reduce your child support because you chose to have more children (although you can defend a request for an increase on this basis). This could be really bad news for someone who is apparently unaware of birth control like New York Jets cornerback, Antonio Cromartie . Antonio Cromartie has a lot to say about the upcoming Patriots/Jets Divisional Playoff Game , but is less eloquent when it comes to remembering the names of his nine children (with eight different mothers). This video from Toucher & Rich (of Boston's 98.5 the Sports Hub) points out Cromartie's shortcomings in song:

Will My Court File be Made Available to the Public?

Many of our clients or potential clients are concerned about whether their court records will be made available to the public. In most instances court records are available to the public, with some limited exceptions. This includes the contents of case files, pleadings and motions. In family law (divorce, paternity, guardianship) cases some materials are not public, such as findings of non-paternity in a paternity suit. In addition you can request that certain information be impounded such as an individual's address (impounded by the judge "upon good cause shown" -- which may be harder to show than one might imagine). Additionally, family law case files automatically impound some materials, such as financial statements, child support guideline worksheets, and reports of a guardian ad litem, probation officer or court clinic. Practically speaking, the availability of the public portions of your case file does not necessarily mean that any member of the public will a

Does Adultery still Matter? 5 Reasons Why it Does.

Besides the obvious issues that adultery presents for a marriage, does it still matter in a divorce? As a divorce attorney and mediator, I often see divorce cases where one party or the other has moved on and begun an affair. As suggested by fellow attorney, Gabriel Cheong, on his blog on this issue , I don't think this is as often the cause of divorce as it is a sign that the marriage was already over. So does adultery matter in a divorce case? Regardless of whether adultery is a cause of the divorce or just the nail in the coffin, it can still have a major effect on how the divorce case proceeds in 5 different ways: 1. THE FIRST IMPRESSION: Adultery is still at base an emotionally charged issue. Most people's first reaction to hearing of one party cheating on the other, is to side with the "victim." This feeling is based on our own immediate reaction to the thought of being cheated on ourselves. This impression is not based on all the facts, and is an emotio

Alimony Reform Update: Bill to be Filed in Early January

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 . Fox25 News and Steve Hitner of Mass Alimony Reform are reporting that the Legislative Task Force on Alimony has reached agreement on a final draft for an Alimony Reform Bill of 2010. The Bill will likely be filed in the next few weeks and may then be subject to further changes in legislative committee. Once the bill is available, we will be posting our thoughts and comments. MA Alimony Laws: Close to Reform?: MyFoxBOSTON.com For more information see our previous posts on this subject: Alimony Reform: Stay Tuned! - December 3, 2010 It's a Trap! The Massachusetts Alimony Debate - February 13, 2010

Can I Get a Divorce or Annulment if my Spouse has an STD?

In Massachusetts, the possible grounds for divorce are cruel and abusive treatment, utter desertion, adultery, intoxication, impotency, nonsupport , confinement to prison for 5 years or more , and irretrievable breakdown (i.e. the no-fault standard) . The possible grounds for annulment are incest , polygamy , being underage, being insane , failure to properly complete the marriage , impotence, fraud, misrepresentation of chastity, misrepresentation of disease, and duress. If one party conceals that they have a sexually transmitted disease then that could be considered a fraud and sufficient to annul the marriage. If the parties lived together or consummated the marriage after this knowledge was learned that action would likely remove the misrepresentation as a basis for annulment. If you are not able to obtain an annulment, you would still be able to obtain a divorce. It is possible you could argue for divorce based on impotence, which is strictly defined as an inability to ha