Thursday, April 28, 2011

We agreed to a new Parenting Plan; should we go back to Court?

It is typical for parents to make changes to their parenting plan and visitation schedules as their children age. Indeed, we often refer clients to two resources which suggest that parenting plans need to change as children age to accommodate their different developmental requirements: Planning for Shared Parenting: A Guide for Parents Living Apart and the Model Parenting Plans.

In addition, we usually include the following paragraph or something similar in our agreements:

Nothing contained in this Agreement shall preclude both parents from jointly and voluntarily modifying the above-described co-parenting schedule or from reaching agreements for the co-parenting of the children by the parents that are not in conformity with the foregoing co-parenting schedule provided that such modifications and agreements be reduced to a writing in advance and be signed and/or otherwise (e-mail) confirmed and/or otherwise ratified by both parties. Either parent may request a modification of the foregoing parenting schedule from the other parent. Any modification of the parenting schedule shall be requested reasonably in advance, except in emergency situations. The parties shall take into consideration the best interests of the children when discussing exceptions to the parenting schedule.

This is intended to provide parents with encouragement to be flexible when life requires it or children's ages require new arrangements.

But, if you enter into such a modification, should you go back to court to have it approved by the court?

According to the Massachusetts Appeals Court in an unpublished decision, if you don't ratify the agreement in writing and have it approved by the court it may not be enforceable. In Benoit v. Benoit the court found that the oral agreement between parents to make changes to the parenting schedule was not sufficient evidence to show a material and significant change in circumstances. The court therefore refused to enter the oral agreement as a new order. If the parties had made the agreement in writing and entered it as an Agreement for Modification, then the Father could have enforced it in court. But since they didn't, the court was not willing on the evidence of an oral agreement alone, to enforce the changes.

Wednesday, April 27, 2011

Can a Restraining Order be Permanent?

In our last post we provided information on the three types of orders that can help protect someone from an abusive spouse.

In two scenarios these orders can be permanent:

An abuse prevention order under M.G.L. c. 209A, often referred to as a 209A or restraining order, can be ordered for any fixed period of time up to one year. If an ex-parte hearing (without the defendant) was held for the initial hearing, then another hearing will be set up within ten (10) days to give the defendant an opportunity to tell their side of the story. After that opportunity, the order can be extended for up to one year. At the extension hearing if the plaintiff appears, the court may extend the order for any additional time reasonably necessary to protect the plaintiff. This extension can be permanent if the circumstances warrant that decision.

In addition, pursuant to a divorce case under M.G.L. c. 208, § 18, the Probate & Family Court can order a husband or wife to refrain from placing any restraint on the personal liberty of the other. In Champagne v. Champagne, the Massachusetts Supreme Judicial Court determined that this statute allowed for permanent orders pursuant to the broad language stating "to make such further order as it deems necessary to protect either party or their children, to preserve the peace or to carry out the purposes of this section relative to restraint on personal liberty."

Tuesday, April 26, 2011

How do I get protection from an abusive spouse?

In Massachusetts, there are three statutes which can provide protection from an abusive spouse.

As a preliminary warning, none of these statutes, nor any other piece of paper, can physically prevent someone from harming you. These laws only provide for extra penalties and orders to discourage such behavior. If you are in fear of being harmed, and don't think that anything will stop your abuser then you should call a Domestic Violence Program for help.

Despite the limitations of these orders, they can still be useful tools in discouraging, preventing and punishing abusive behavior. The three statutes that can be used by victims of abuse to obtain protection from an abusive spouse are:

1. M.G.L. c. 208, § 34B - Order to Vacate Marital Home

Authority: The Probate & Family Court may order a husband or wife to vacate the marital home as part of a divorce or separate support proceeding.

Standard: The Court may order the offending spouse to vacate "if the court finds, after a hearing, that the health, safety or welfare of the moving party or any minor children residing with the parties would be endangered or substantially impaired by a failure to enter such an order."

Time limitations: The Order to Vacate shall not exceed ninety days, but can be extended for an additional "certain period of time, as the court deems necessary or appropriate."

2. M.G.L. c. 209A - Abuse Prevention

Authority: If the Trial Court (usually the District or Probate & Family Court) finds abuse they shall order a family or household member to:

(a) refrain from abusing the plaintiff;
(b) refrain from contacting the plaintiff; and
(c) vacate and stay away from the household, multiple family dwelling, and workplace.

The Court can also award the plaintiff temporary custody of any minor children and provide for visitation or child support.

Standard: A family or household member includes persons who:

(a) are or were married to one another;
(b) are or were residing together in the same household;
(c) are or were related by blood or marriage;
(d) have a child in common regardless of whether they have ever married or lived together; or
(e) are or have been in a substantive dating or engagement relationship.

“Abuse” is defined as "the occurrence of one or more of the following acts between family or household members:

(a) attempting to cause or causing physical harm;
(b) placing another in fear of imminent serious physical harm;
(c) causing another to engage involuntarily in sexual relations by force, threat or duress."

Time limitations: "Any relief granted by the court shall be for a fixed period of time not to exceed one year. Every order shall on its face state the time and date the order is to expire and shall include the date and time that the matter will again be heard. If the plaintiff appears at the court at the date and time the order is to expire, the court shall determine whether or not to extend the order for any additional time reasonably necessary to protect the plaintiff or to enter a permanent order."

3. M.G.L. c. 208, § 18 - Pendency of action for divorce; protection of personal liberty of spouse; restraint orders authorized

Authority: In a divorce action, the Probate & Family Court may prohibit the husband or wife from placing any restraint on the personal liberty of the other.

Standard: The Court may "make such further order as it deems necessary to protect either party or their children, to preserve the peace or to carry out the purposes of this section relative to restraint on personal liberty."

Time limitations: Under Champagne v. Champagne, 429 Mass. 324 (1999), these orders may be permanent, until further order of the Court.

Thursday, April 21, 2011

What is a Caregiver Authorization?

A Caregiver Authorization is an alternative to going to court for a guardianship of a minor. It is a form that allows a parent to give a Caregiver the power to make medical and education decisions for a child. A Caregiver is someone the child lives with who is not a parent.

A Caregiver Authorization is different from a Guardianship in a few major ways:

1. It does not give the Caregiver custody of the child, only the right to make decisions.

2. It does not take away any powers from the parents, and the parents retain final decision making authority.

3. A Caregiver Authorization can be revoked by a parent via letter to the caregiver.

A Caregiver Authorization is good for two years or until a parent revokes it.

For more information regarding why you would use a Caregiver Authorization and how to complete it read the Massachusetts Caregiver Instructions provided by the Court.

Click here to obtain the Caregiver Authorization Form.

Monday, April 18, 2011

What isn't a Parent Coordinator?

In our previous post we explained what a parent coordinator is.

But it's also important to point out that Parent Coordinators cannot solve all of your problems, especially if you're not willing to work with them.

Parent Coordinators are NOT Therapists. They are not hired to help you deal with your personal issues, but rather for the specific purpose of helping you learn to co-parent effectively.

Parent Coordinators are NOT Couples Therapists. They are also not hired to help you "fix" or understand your relationship with your ex. Their job is to help you help your children by learning to communicate better.

Parent Coordinators are NOT Mediators. While some of what they do is similar to mediation, you're not trying to reach an agreement on a specific issue. One specific issue may result in your calling the coordinator, but long term the process is not about mediating one issue, but learning how to resolve all parenting issues more civilly.

Parent Coordinators are NOT Judges. Sometimes a parent coordinator will make a decision similar to a Judge if the parties have agreed to give them that authority. However, any decision is only binding until reviewed by the Court. And the use of this power is unusual because it defeats the goal of having the parents begin to work these issues out together rather than always seeking outside help.

Parent Coordinators are NOT Guardian Ad Litems. A Guardian At Litem reports to the Court on issues such as custody, after an investigation. It is not the job of a Parent Coordinator to report to the Court or to take sides.

Friday, April 15, 2011

What is a Parent Coordinator?

According to the Guidelines for Parenting Coordination developed by the AFCC Task Force on Parenting Coordination:

"Parenting coordination is a child-focused alternative dispute resolution process in which a mental health or legal professional with mediation training and experience assists high conflict parents to implement their parenting plan by facilitating the resolution of their disputes in a timely manner, educating parents about children's needs, and with prior approval of the parties and/or the court, making decisions within the scope of the court order or appointment contract."

In other words, a Parent Coordinator helps parents avoid court by mediating their co-parenting disagreements.

Although some states have statutes that define Parent Coordinator's powers, in Massachusetts there is no statutory authority for parenting coordination. Judges differ on whether they have authority to order Parent Coordinators without a statute granting them that authority. Arguably the discretion afforded Judges to create orders for the best interest of the children could be extended to order the parents to cooperate with a parent coordinator. In all cases, though, Judges can affirm an agreement of the parties to use a parent coordinator.

This type of agreement is often recommended by attorneys in high conflict cases as a potential solution to avoiding multiple court hearings. In many instances a parent coordinator can be cheaper than going back to court again and again, and more effective because they not only assist with the immediate problem but help parents learn how to communicate with each other. If successful, the parents will no longer need the assistance of the court or eventually even the parent coordinator to help them co-parent effectively.

Thursday, April 14, 2011

The Judge is Watching You!

When presenting at a Motion for Temporary Orders, Restraining Order, Motion to Vacate, or similar hearing the Court will typically hear argument from parties or counsel without a full evidentiary hearing. This means that the Judge will make a decision that could significantly affect your life after having only 10-15 minutes to learn what is going on.

I tell clients to pay attention to everything the Judge does during that hearing to get a clue as to what the Judge might be thinking and how they might rule. When they are looking at you, when they are writing, and what questions they ask, are all clues as to what is important to the Judge.

Similarly, the Judge is watching everything you do during that hearing. Since the Judge only has 10-15 minutes to assess your credibility as a witness everything you are doing matters as well. Judges are not just listening to what you say, but how you say it. In addition, the way you react to the allegations of the other party can be crucial to your case. For example, if a hearing is about your inability to control your temper and you react to every negative comment by the opposing party by whispering to your attorney, or shaking your head, then you are showing the Judge that you can't control yourself. We speak volumes with our body language and how we carry ourselves. In the short amount of time the Judge is trying to get a feeling about you everything you say matters, whether you say it literally, or you say it indirectly with your body language.

Friday, April 1, 2011

What will happen to Trust assets in my Divorce?

According to this recent Daily Mail article, Athelstan Whaley, a millionaire hotel tycoon will be left practically penniless by a UK divorce court's order. Whaley claims that the main source of his wealth, a family trust, cannot be accessed to pay for his divorce settlement, despite the fact that the Judge took the trust into account when calculating the divorce payout. In order to pay the settlement, he will have to use all of his liquid assets including selling his house, and claims that this will make him homeless. While it's hard to feel bad for a millionaire, a family trust could put any divorcing spouse in this position.

In Massachusetts the division of marital property in a divorce case is controlled by M.G.L. Chapter 208 Section 34, which states in pertinent part:

"In addition to or in lieu of a judgment to pay alimony, the court may assign to either husband or wife all or any part of the estate of the other, including but not limited to, all vested and nonvested benefits, rights and funds accrued during the marriage and which shall include, but not be limited to, retirement benefits, military retirement benefits if qualified under and to the extent provided by federal law, pension, profit-sharing, annuity, deferred compensation and insurance."

This means that the Judge in a divorce case can consider how to divide all property that is in the name of either person, and this includes property held in trusts. Whether or not a trust is divisible as a marital asset depends on the type of trust and how it may have been used during the marriage.

In Ruml v. Ruml the court indicated that a trust could be martial property, especially if it was accessed during the marriage. Ruml v. Ruml, 50 Mass. App. Ct. 500, 512 (2000). In Ruml, the court elaborated that “trust assets where a spouse holds powers, such as the power of appointment of trustees, are subject to equitable distribution pursuant to M.G.L. c. 208 §34. Id.

In some instances, though, the beneficiary does not have any powers, and it is completely up to the trustees to decide how and when the property will be distributed. These are called spendthrift trusts and they may be protected in a divorce if the trust truly has been treated as a spendthrift trust.

"Trusts containing spendthrift provisions of the type under consideration in this case are recognized as valid in Massachusetts." Pemberton v. Pemberton, 9 Mass. App. Ct. 9, 19 (1980) "Moreover, in Massachusetts the settlor's intent to deny creditors of a beneficiary recovery against trust assets or recovery against the trustee's wishes has been accorded particular deference, even in the face of strong public policy arguments favoring such a recovery.’ Id. at 20. Although some scholars suggest limited authority to allow wife and dependents to pierce a spendthrift clause, there is little authority which allows a court to order a trustee to do so over the objection of the trustee. Id. See footnote 10 and 11.

The Judge in a divorce case could award other assets to offset the value of trust proceeds to one spouse, but according to Pemberton if the trust hasn't been invaded during the marriage and is a spendthrift trust than a Judge cannot order the trustees to pay assets to the beneficiary's spouse against the intent of the trust.

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