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Showing posts from April, 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 t

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 r

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 cour

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 .

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 Coo

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 author

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

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 no