Thursday, February 24, 2011

The Do's and Don'ts of Hiring a Divorce Attorney

Donna Ferber, a psychotherapist and author of the book "From Ex-Wife to Exceptional Life: A Woman's Journey Through Divorce" (Purple Lotus Press 2009), recently wrote a two-part blog on the Do's and Don'ts of hiring a divorce attorney. Some of the highlights:

The Do's:

- Just because your friend had a good experience with an attorney doesn’t mean they are the right one for you. Trust your gut.

- Aggression doesn’t insure a “win”. An overly aggressive attorney may fan the flames of conflict rather than move toward resolution.

- Pick an attorney who understands this isn’t about “winning”. She/He should understand divorce is about a major change in the family and that more than the “bottom line” will be affected. A good family attorney is willing, when necessary to work with your therapist. He/she is focused on the family’s post divorce situation and understands the interconnectedness of the family does not end with the dissolution of the marriage. In short, they can see the “big picture”.

- A consultation is like a first date, what you see is probably what you get. Don’t pick someone who minimizes your concerns, is sarcastic or dismissive. Don’t ignore your own radar by dismissing his/her behavior in favor of excellent credentials.

- Be clear the court is not going to reward you for pain and suffering. Settlements aren’t based on how betrayed or rejected you feel. Keeping an objective attitude regarding the legal system can play a big part in keeping your expectations realistic.

The Don'ts:

- Don’t use your attorney as a therapist. And don’t use your therapy time to talk about legal issues. Efficient utilization of your professionals will keep costs down, provide you with better information and effective support.

- Don’t withhold information from your attorney because you are embarrassed. They aren’t there to judge you, but if you don’t give them the information they need, you cut down on their ability to effectively represent you. Don’t assume drinking, abuse or affairs are not relevant even if you live in a “no fault” state. Underreporting or minimizing can result in your not getting the best settlement. ALWAYS tell your attorney if there are weapons in your home.

A Picture is Worth a Thousand Words, and the Date, and the Time, and your Exact GPS Location!

Warning: this blog is going to show you information that can be used for good or evil.

If you are taking pictures with your phone (and even some cameras) and then posting those pictures on the internet, you are sharing more than just the picture. You are probably also sharing the date and time the picture was taken, the type of phone you have, what software you are using, and scariest of all - the exact location where the picture was taken.

Do I have your attention now?

Let me show you how it works:

This morning I took the above picture with my IPhone. I edited the picture on my computer and posted it here. Even after editing the picture, however, the picture retains certain embedded information.

To see this additional information you don't have to be a super smart computer hacker. On a PC, simply right-click the picture and select properties:

Now click on the details tab and immediately you will see some information that I might not have intended to share, such as the date and time the photo was taken:

When you scroll down and view the other details you see that you can also discovery I took this photo with an Apple iPhone 4. And although I might want you to know that I have an iPhone 4 so you can be super jealous, I probably don't want you to know the next thing you can discover if you keep scrolling down:

As shown in the image above, the details saved in the embedded data of this picture include the GPS Latitude and Longitude where it was taken. How did they get there? iPhones, as a "convenient feature," geo-tag all photos with this information. When you post the picture online, these details will often still remain with the image. This means that someone with minimal computer skills can figure out exactly where you were when you took the picture.

If I take the GPS Latitude and Longitude displayed in the above image and enter them into the FCC's online converter I get the following decimal results: Lat 42.288166, Long 71.333667. If I then enter these figures into an online address converter, I am told that this picture was taken at: 150 E Central St, Natick, MA 01760, USA.

Although not exact this approximation is too close for comfort (the picture was actually taken at my office located at 154 E. Central St., Natick, MA 01760).

By posting this information I realize that I am showing potential stalkers how to get information on their victims. However, I am hopeful that the majority of our readers will benefit from this information by protecting themselves rather than using it against others.

There are numerous ways in which this information could be used by attorneys or litigants in divorce cases to prove the whereabouts of somebody if those issues are in question. And the potential issues this raises in cases involving Domestic Violence are painfully obvious.

So here is the valuable TIP: Be careful what you share online, and always make sure you consider not just the information you intend to share but what information you might also be sharing inadvertently. Most phones will allow you to disable the geo-tagging feature. If you have an iPhone you can disable this feature as described in this eHow article.

Friday, February 18, 2011

Sharing is Caring - Tumblr and QR Codes

At Kelsey & Trask, P.C. we try to use the latest technology to stay current on the newest laws, to help our clients communicate with us more efficiently and to stay connected with our friends, other professionals and our clients. You probably already know how to find us on Facebook, LinkedIn and Twitter, and to download our iPhone Apps.

And now we've added two more ways to connect with us faster: QR Codes and a Tumblr page.

QR Codes:

A QR Code is a two-dimensional barcode readable on any smart phone with a camera. Just download a QR Code Reader (I use Neo Reader, which is free) and you can use the camera in your phone to read the Code. For example, if you scan the Code to the right you would be taken to our mobile News & Media webpage.

We've also incorporated QR Codes into our latest business cards (pictured below). If you scan the Codes on our business card you will be taken to our mobile contact page. From there you can get directions to our office, call us, or download our contact information straight to your phone's contacts (via VCard downloadable on most phones).

For some other examples of how business are integrating QR Codes into their business cards check out dzineblog's 20 QR Code Business Cards Design Inspiration. To generate your own QR Codes for free online we use delivr's QR Code Generator.

Tumblr is the latest in sharing online, allowing users to share blog posts, photos, videos, and links quickly and easily. You can follow other Tubmlrs and repost their content, just like on Twitter, but unlike Twitter you can share more than 140 characters.

To follow us on Tumblr visit kelseytrask.tumblr.com. If you have a tumblr login then click on follow in the upper right hand corner to have our content streamed right to your tumblr dashboard.

Tuesday, February 15, 2011

Is your Lawyer on Speed Dial?

If someone claiming to be an innocent citizen had their criminal attorney on speed dial you might wonder about their true proclivities. Well the same is true if you have your divorce attorney on speed dial, but claim you don't want a high conflict divorce.

In the majority of divorce cases there is a lot of waiting time: waiting for documents, waiting for deadlines, and waiting for the next court date. Unfortunately, this is just the nature of how a court process works, and unless you can reach a full agreement with your soon-to-be ex-spouse then you will spend time waiting. During that waiting time, you can either be patient or you can call your attorney every day creating issues and problems that really didn't need your attorney's attention.

It's important to remember that every time you call your attorney there is a cost, and what you're calling about may not be worth that cost. It's also important to remember that you hired your attorney to deal with your legal problems. If you are calling about an emotional problem, for example, your attorney is not trained to deal with that issue. You should call a therapist or other trained mental health professional to help you with emotional problems.

If you feel the need to call your divorce attorney every day, then I encourage you to think about what you are accomplishing with these phone calls. Are you really using your attorney's services efficiently? If you're not sure, then consider waiting and calling your attorney when you have multiple issues to discuss instead of just what's on your mind at that moment.

Monday, February 14, 2011

Are you Celebrating Valentine's Day or looking for a Divorce Attorney?

I don't know why exactly, but it is the case every year that we get busier with divorce cases around Valentine's Day. According to the New York Post and Avvo.com searches for divorce attorneys rise by as much as 40% around Valentine's day. Maybe this is because the whole world seems to be saturated with sickening sweet messages for people that are "in love." Or maybe it's the numerous reminders for couples that used to enjoy Valentine's day that they no longer have reason to celebrate.

Regardless of the reason, if you are part of that 40%, consider giving yourself a Valentine's Day gift. Even if you are considering the intimidating process of starting a Divorce, remember that litigation is not the only way. Other options, such as Mediation, could be faster or cheaper. To read more about the advantages of Mediation check out these previous posts:

What are the Advantages & Disadvantages of Mediation?
Why Are More Couples Choosing Divorce Mediation?
Dramatic Impact of Mediation on Children of Divorce
Another Benefit of Mediation: No Waiting in Court

Saturday, February 12, 2011

Friday, February 11, 2011

How should I tell my spouse that I want a Divorce?

Card Designed By: Clara Chandler 
Click here to purchase.
A recent Huffington Post slideshow highlights the problem with breaking the big "D" word: Divorce Cards: The 8 Harshest Ways To Say Goodbye.

Although many couples know a Divorce is coming, in almost all cases one person decides first that the marriage is irretrievably broken down and there is no chance of reconciliation. When that happens, the way that the subject is brought up can set the tone for the case moving forward. Parties can discuss the issue directly, or lawyers can bring up the subject via telephone call or letter. In some cases it may be necessary to have the party served by a constable or sheriff even though that might start the case on a negative note.

While many couples will be comfortable enough to discuss the choice to divorce directly, there are two types of cases where it doesn't make sense to do so:

1. The first and most obvious reason that discussing divorce directly may not be appropriate is in cases of domestic violence. In these cases reducing or avoiding potentially volatile interactions is most important. Similarly in cases where one party fears the other (even if there isn't a history of violence) then direct communication may be problematic.

2. In cases where funds may be wasted or hidden, it is sometimes important to have the other party served with the divorce complaint and summons as soon as possible. This is because the Automatic Restraining Order (Supplemental Probate Court Rule 411) prohibits parties from transferring or wasting assets except for specific exceptions, and goes into effect once they are served with the Complaint for Divorce. In these cases, discussions could tip the other party off and they might avoid service of the complaint.

Thursday, February 10, 2011

I'm getting Divorced, can I file a Single Status Tax Return?

For the purposes of Federal and Massachusetts income tax returns you are required to file under the status of either "joint" or "married, filing separately" if you are married to your spouse on December 31st of the tax year in question. Therefore, if you are in the process of getting a divorce but were still legally married on December 31, 2010, then you must file under one of these two statuses for the year 2010.

There is no specific law that requires you to file under the status of "joint" or "married filing separately", and typically this is your choice. A Judge can order parties to file jointly if there will be a benefit (such as a higher refund), but this is not typical.

In each case the choice of how to file can be affected by different factors. For example, if you are concerned that your spouse is hiding income, then you definitely would not want to file a "joint" tax return because you could be liable for his/her hidden income.

In most cases it makes sense to file jointly because their is usually a financial benefit, but in your case you should consult with an accountant to figure out the best option for you.

Wednesday, February 9, 2011

What is the purpose of the Divorce Nisi waiting period?

In Massachusetts the statutory waiting period after a Judgment of Divorce and before the divorce becomes final (or absolute) is called the Nisi period. After a divorce case settles or goes to trial, a Judgment of Divorce Nisi will issue and it will become Absolute after a further ninety (90) days.

This waiting period serves the purpose of allowing parties to change their mind before the divorce becomes final. If the Judgment of Divorce Nisi has issued but not become final yet, and you and your spouse decide you don't want to get divorced, then you can file a Motion to Dismiss and the Judgment will be undone. Although many of my clients who are getting divorced think the idea of getting back together with their ex sounds crazy, I have had cases where this happened.

In addition to offering a grace period to change your mind, the Nisi period has three other legal effects:

1. The most obvious effect of the waiting period is that you cannot remarry during the Nisi period, because you would then technically be married to two people.

2. If the Nisi period crosses December 31, then you are considered married for that tax year which means you must file under "joint" or "married, filing separately" and cannot file as "single".

3. Under some health insurance plans you may not be able to stay on your ex's health insurance (as explained further in our previous post, Will I be able to keep my health insurance after the divorce?), but at least during the Nisi period you can stay on the health insurance.

Tuesday, February 8, 2011

How Long after a Divorce do I have to wait before getting Re-married?

In Massachusetts there are statutory waiting periods that control when the divorce becomes final (also called Absolute). Until the divorce is officially final you cannot remarry anywhere without committing bigamy (i.e. being married to two people).

In Massachusetts the length of this waiting period depends on the type of divorce case.

In a Joint Petition for Divorce under Section 1A of M.G.L. c. 208, if both parties agree that there has been an irretrievable breakdown of the marriage and agree on all other issues related to their marriage, as described in a Separation Agreement, then you can file a Joint Petition for Divorce. The Court will set a date and time for an uncontested divorce hearing, once you have filed a Joint Petition for Divorce, a certified copy of the Marriage Certificate, an Affidavit of Irretrievable Breakdown, a Certificate of Absolute Divorce or Annulment, a Separation Agreement, two Rule 401 Financial Statements, and two Certificates of Attendance at the Parents Apart Program (if there are minor children of the marriage).

In most cases, both you and your spouse must attend the uncontested divorce hearing and testify under oath that your marriage has suffered an irretrievable breakdown. The Judge will then issue Findings of Fact and if the Judge finds that your marriage is irretrievably broken down, then a Judgment of Divorce Nisi will issue after thirty (30) days, and it will become Absolute after a further ninety (90) days.

This means that if you file a Joint Petition for Divorce you are not legally and officially divorced until 120 days after the divorce hearing date.

Under Section 1 or 1B of M.G.L. c. 208, if only one person in the marriage is ready to tell the Court that the marriage is over, or if you cannot agree with your spouse on other issues related to the divorce (such as the division of property, custody of children, amount of support, etc.), then you must file a Complaint for Divorce. If the parties are unable to settle their divorce case, then a trial will be held, and after reviewing both parties' proposals and the evidence, the Court will issue a Judgment of Divorce Nisi and it will become Absolute after a further ninety (90) days. Similarly after 6 months have passed since the date of service, a Complaint for Divorce may be settled and a Separation Agreement presented to the Court. If the Court approves the Separation Agreement then the Court will issue a Judgment of Divorce Nisi and it will become Absolute after a further ninety (90) days.

This means that if you file a Complaint for Divorce, whether or not there is a trial or a settlement, you are not legally and officially divorced until 90 days after the issuance of the Judgment of Divorce Nisi.

In addition, once the divorce is final there is typically a three-day waiting period for obtaining a marriage license after the application is submitted to your town or city hall. However, it is possible to apply to the Probate Court for a waiver of this three-day period for good cause.

Monday, February 7, 2011

Dealing with the Stress of Divorce

As I get older I have begun to realize how much of my success is due to the support I receive from my family and friends. Without that support system to help me in the difficult times I wouldn't have had the courage and confidence to take many of the chances in my life that have led me to where I am. This has brought me to realize how important our support systems are and how often we take them for granted.

Going through a divorce is often described as the second most stressful event in a person's life (next to the death of a loved one). It is important to find ways to reduce this stress so it doesn't negatively affect other areas of your life.

When people experience the death of a loved one, social conventions provide many events and opportunities for family and friends to provide support. But talking about divorce is different. Sometimes people feel uncomfortable talking about their divorce with their friends and family. In addition, sometimes sharing too much about your divorce case with friends can make its way back to your spouse (as we warned about in a previous post: 5 Worst Divorce Mistakes - MISTAKE #3: "Our friends should know my side of the story!").

If you have a strong support system don't be afraid to lean on them when times are tough (and to be there for them when they need you). If you're having difficulty dealing with the stress of a divorce case, and your support system is not as helpful as you need, then seek professional help. We often recommend that our clients meet with a therapist to ensure that they are dealing with their emotions in a healthy way. If you're comfortable having an attorney help you with the legal aspects of your case, you should also be comfortable admitting you might need help (from family or a trained professional) to help you with the other aspects.

Friday, February 4, 2011

Who Gets Hurt when You Play Telephone with Your Kids?

YOUR KIDS GET HURT! It seems obvious, but unfortunately many couples get caught up in the emotion of divorce and lose their ability to see their actions objectively.

This is one of the reasons the Massachusetts Probate & Family Courts under Standing Order 99-1 require parents with minor children to attend the Court-sponsored Parents Apart education program. The Program discusses the impact of Divorce on children and tries to help parents understand how sending messages through children can be so damaging to children.

If you need more convincing read this Rant posted on Craigslist by a child of divorce (Warning: the rant contains strong language).

A brochure which lists the names, addresses and telephone numbers of the various organizations that provide the Parent Education program, in alphabetical order by town, is available by clicking here.

Thursday, February 3, 2011

Does a Divorce affect my Homestead protection?

A new Massachusetts Homestead law was signed in December, 2010 (taking effect in March, 2011) and there are some provisions that relate to how a homestead is or is not affected by divorce:

Effect of Homestead on Child Support or Alimony: M.G.L. c. 188 Section 3(b)(4) - The Homestead Exemption does NOT protect you from collection of child support or spousal support (a/k/a alimony).

Effect of Marriage on Homestead for Spouse: M.G.L. c. 188 Section 5(d) - "The estate of homestead of an individual who records a declaration of homestead under section 3 and who subsequently marries shall automatically be deemed to benefit that individual’s spouse."

Effect of Divorce Orders on Homestead for Spouse and Children: M.G.L. c. 188 Section 6 - "In a case where a complaint for divorce, separate support, guardianship or conservatorship has been filed in the probate court by or against a person entitled to the benefit of an estate of homestead, the spouse and minor children of that person may use, occupy and enjoy the homestead estate until ordered otherwise by the probate court. The recording of an order of the probate court, together with the description of the homestead estate, shall prevent a beneficiary of the homestead estate from disposing of the estate until such time as the probate court revokes the judgment."

M.G.L. c. 188 Section 7 - "The estate of homestead existing at the death or divorce of a person holding a homestead under section 3 or 4 shall continue for the benefit of the surviving spouse or the former spouse and minor children who occupy or intend to occupy the home as their principal residence. The estate of homestead of the surviving spouse or former spouse and minor children shall continue notwithstanding the remarriage of the surviving or former spouse."

Thank you to Danielle Van Ess, Esq. for providing all of this information (and practically writing this blog for us). We recommend you check out her blog post regarding how the new Homestead Law affects Estate Planning: Why You Should Care About the New MA Homestead Law.

Wednesday, February 2, 2011

I'm Married but my Husband is not the Father of my Child; What Now?

In Massachusetts there is a presumption that a child born of a woman who is married, or was married in the last three hundred days before the child's birth, is the child of that woman's husband. This is a legal presumption and can be rebutted by evidence.

If you are filing a Paternity Complaint and the mother was married at the time of the child's birth, or in the last three hundred days before the child's birth, then the Court requires that you use a different form and that you include the Husband as a Defendant in the action. Usually a DNA test will be performed to confirm that the Husband is not the Father (which is typically sufficient evidence to rebut the presumption) and then the action can proceed similar to any other Paternity action.

This is apparently not the case in every state, as evidenced by a recent case in Michigan where a biological Father was denied parental rights because his child was born to a married couple, and Michigan law designated the Husband as the Father. According to this ABA article, the only way to overcome this presumption in Michigan is in a dispute between the Husband and Wife, so the Father had no standing. I tend to agree with the Father's lawyer who was quoted as claiming this ruling was "absurd."

Tuesday, February 1, 2011

Are there restrictions on what I can name my baby?

Although a recent LegalBlogWatch.com article discusses the limitations that some states place on baby names, in Massachusetts there are no restrictions in the general laws that limit parents' rights to name their child.

M.G.L. c. 46 s 1 prohibits the recording of a father's information in the birth record of a child of unwed parents "except as provided in section 2 of chapter 209C where paternity has been acknowledged or adjudicated under the laws of the commonwealth or under the law of any other jurisdiction." This does not, however, restrict the right of the Mother to use the Father's surname, only restricts her ability to list him as the Father without his agreement.

There may be administrative limitations such as limiting the full name to 40 characters for recording in the Massachusetts electronic data system (as reported in a law review article, Naming Baby: The Constitutional Dimensions of Parental Naming Rights). It is also likely that administrative officials might refuse to record names that contain obscenities or ideograms. The above referenced law review article discusses the constitutionality of such restrictions.

In the event parents disagree about the name of a child, the court may also become involved. MassLegalServices.org provides information about Petitions for Name Change including a summary of what happens when parents disagree. The short version is that the court will decide what name is in the child's bester interest taking into account factors such as the length of time the child has used a previous name, the age of the child, and any potential difficulties or embarrassment a current or proposed name may present.

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