Monday, January 31, 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 waiting for your case to be heard. That time is time that your attorney cannot spend working on other cases and is therefore time you will be charged for. Essentially this means that when you go to Court you can end up paying your attorney for multiple hours, for work that could have been completed in a much shorter time working with a mediator.

Of course going to court is sometimes necessary because mediation requires both parties to voluntary participate. But if you are trying to decide whether to use mediation or not, think about whether you want to solve your problems, or wait (and wait, and wait) for someone else to solve them for you.

Wednesday, January 26, 2011

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 favor the legislation.

To see Denise Squillante, President of the Massachusetts Bar Association summarize the Act on Fox25 News check out this video:

Alimony reform bill: Are changes on the way?: MyFoxBOSTON.com

If you want to read more about the proposed changes visit our last article: The Alimony Reform Act of 2011 or go to MassAlimonyFormula.com.

You can also Comment on this (or our previous posts) by completing the "Post a Comment" box at the end of each article.

Monday, January 24, 2011

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
Current Alimony Law
Alimony Reform Act of 2011
Proposed Alimony Changes
  • 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 and the opportunity of each for future acquisition of capital assets and income.
  • the length of the marriage;
  • age of the parties;
  • health of the parties;
  • both parties' income, employment and employability, including employability through reasonable diligence and additional training, if necessary;
  • economic and non-economic contribution to the marriage;
  • marital lifestyle;
  • ability of each party to maintain the marital lifestyle;
  • lost economic opportunity as a result of the marriage;
  • and such other factors as the court may deem relevant and material.
Types of Alimony: Undefined Types of Alimony:
  • General Term Alimony;
  • Rehabilitative Alimony;
  • Reimbursement Alimony; and
  • Transitional Alimony.
Formula: NONE Formula: Not to exceed the recipient's need or 30% to 35% of the difference between the parties gross incomes.
Durational Limits: NONE Durational Limits:

Rehabilitative Alimony: 5 year maximum.

General Term Alimony:
  • Marriage of 5 years or less - Limit is 50% of the length of the marriage;
  • 5-10 years - 60%;
  • 10-15 years - 70%;
  • 15-20 years - 80%;
  • 20 years or more - indefinite.
Cohabitation: No mention. Judge's have discretion to consider. Cohabitation: The cohabitation of the recipient spouse with another person for a continuous period of at least three months may be cause for suspension, reduction or termination of alimony;
Retirement: No mention. Judge's have discretion per Pierce case. Retirement: Alimony terminates upon payor attaining the full retirement age per the old-age retirement benefit under Social Security.
Remarriage of Payor: income and assets of the payor's spouse can be considered. Remarriage of Payor: income and assets of the payor's spouse shall not be considered in a redetermination of alimony in a modification action.

For more information about the Act, visit MassAlimonyFormula.com.

For more information about the recent history of the alimony debate, view our previous post: It's a Trap! The Massachusetts Alimony Debate - February 13, 2010

For more information about the current state of alimony in Massachusetts visit our website's Alimony page.

Tuesday, January 18, 2011

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 of your case.

Monday, January 17, 2011

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 tasteful and respectful way.

Friday, January 14, 2011

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 actually see what is inside. It simply means that if anyone specifically wanted to see it, and was motivated enough to find and travel to the right courthouse, they could see it. Although this may happen, it rarely does.

For more information on the availability of court files, I suggest reading "A Guide to Public Access, Sealing & Expungement of District Court Records."

Thursday, January 13, 2011

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 emotional, not rational, reaction. But because first impressions matter, adultery can have an impact on how a case begins which can often set the tone. It can sometimes be difficult to overcome this first impression and focus on how to move a case forward.

2. THE MORAL IMPACT - APPORTIONING FAULT: Adultery is still considered morally abhorrent conduct, even if it somewhat common. Therefore, discovery of adultery is often the moment when a party accepts that their marriage is irreparable. In addition, conduct is one of the factors in M.G.L. c. 208 s 34, the statute which directs the court in how to divide property and/or award spousal support. However, it is important to note that "conduct" is not necessarily weighed as heavily as the other factors and may not result in any major impact on the division of assets or award of support. Adultery is also still available as a cause for filing a Fault-based divorce. However, filing a case under the adultery statute is usually more trouble than its worth given the availability (and lower cost/ease of use) of the No-Fault grounds.

3. THE FINANCIAL IMPACT: While the conduct factor itself may not be weighed heavily in today's courts, any finances misdirected for use in an affair could directly affect the division of property. In fact, any funds spent directly on an affair (such as funds used for gifts, vacations, hotels, etc.) should arguably be replaced, or credited against the offender's share of the assets.

4. THE CRIME: That's right. Adultery in Massachusetts is still a crime. M.G.L. c. 272 s. 14 prohibits adultery and provides for both jail time and/or a $500 fine. Although a case hasn't been prosecuted since 1983 (Commonwealth v. Stowell) the statute is still in effect. This has certain unintended consequences, such as being able to use the 5th Amendment in a deposition if asked about the affair (i.e. invoking your right not to incriminate yourself in a crime). In most cases, the criminal aspect has a minimal impact on how the divorce proceeds.

5. THE DELAY: The biggest impact adultery has on a divorce case is usually the delay it causes in resolving the case because of the impact the affair has on the "victimized" spouse. The specific facts of the affair can have a major impact on how upset the other spouse is, as described in this recent NY Times Article about Adultery in the Martial Bed. The only way to avoid a trial in a divorce case is when both parties are ready to settle, and the hurt and anger that an affair causes can prevent the affected spouse from being ready to settle.

Tuesday, January 4, 2011

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

Monday, January 3, 2011

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 have sexual intercourse. The existence of an STD could be argued as impotence although not technically making intercourse impossible. As with any fault argument, you would bear the burden of proving this fault as a prerequisite to obtaining the divorce, which is one of the reasons we often counsel clients not to file fault divorce cases (as discussed in this previous post: Is No-Fault Divorce a Good Thing? It may soon be the law in all 50 states.).

It would be easier, therefore, to simply apply for divorce based on the no-fault standard in which you could claim an irretrievable breakdown without having to prove the existence or impact of the STD.

For more information about Annulments read our previous post specifically on that subject: Can I obtain an Annulment?

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