Friday, July 29, 2011

Same-Sex Marriage is Getting Easier, But Same-Sex Divorce is still Tricky

Same Sex Marriage Map from Wikipedia
this version by StephenMacmanus
Since 2004, same-sex couples have been allowed to marry in Massachusetts. A handful of states have followed suit and begun allowing gay marriage (namely, Connecticut, Iowa, New Hampshire, New York, Vermont, and the District of Columbia). Some couples have traveled to these states to obtain a same-sex marriage, even though their home state does not permit or recognize their marriage. Further, some same-sex couples that have married in states permitting their marriage have since moved to states that do not recognize their union.

What happens if these couples want to later dissolve their marriage?

A few states that do not permit same-sex marriages, most vocally Texas, have refused to recognize same-sex divorce as well. In opposite-sex marriages, marriages from one state are recognized by all of the other states.  However, the federal law DOMA (the "Defense of Marriage Act") states that no state is required to recognize same-sex marriages from other states. Therefore states that don't allow same-sex marriages can choose to not recognize same-sex marriages from other states as valid marriages.

The rationale behind not allowing same-sex divorce is that those states will not dissolve a legal relationship that they refuse to recognize as valid. For a same-sex married couple that married in Massachusetts but later moved to a state that, like Texas, which won't permit their divorce, obtaining a divorce may prove to be far more complicated than for their opposite-sex counterparts.

Massachusetts requires that parties to a divorce case must have lived together in Massachusetts, and one of the parties must still live in the state when the cause for divorce occurred. Alternatively, if the cause of divorce occurred in Massachusetts, or if one of the parties has lived in Massachusetts for one year, the state will be able to hear their divorce case. If a same-sex couple married in Massachusetts and later moved to Texas, they can't get divorced in Texas or Massachusetts unless they can meet these requirements in Massachusetts, which usually means moving to Massachusetts for at least some period of time.

On the other hand, an opposite-sex couple that married in Massachusetts but later moved to Texas would simply have to meet the jurisdictional requirements of Texas if one of them decided to file for divorce there.

This is just one of the ways that the Federal Law DOMA and the discriminatory enforcement of laws in some states relating to same-sex marriages continues to cause unequal treatment of these same-sex couples.

Should you have any questions about divorce, same-sex or otherwise, contact Attorney Justin L. Kelsey, or call 508.655.5980 to schedule a one hour initial consultation.

Wednesday, July 27, 2011

How should a Child's Age affect their Parenting Plan?

It doesn't take a child development specialist to know that children of different ages have different needs. But how do we apply this knowledge to create age-appropriate parenting plans?

The greatest key to working out an appropriate parenting plan regardless of age, is being able to communicate effectively with your co-parent (or take advantage of resources to help you communicate effectively such as mediation or collaborative divorce).

But if you are not able to work out a plan directly, or need assistance in figuring out what might work best, there are resources available.

Zero to Three: Parenting Issues and Parenting Plans For Young Children is an article devoted specifically to the developmental needs and corresponding parenting plans for very young children.

In Massachusetts, the Court recognizes that their are certain developmental stages that each child goes through, and that it is important for both parents to be involved in the child's life for their development to be complete. In an attempt to recognize at least some generalities in these differences, a committee of mental health practitioners, family law lawyers and Judges wrote a very useful guide to shared parenting called Planning for Shared Parenting: A Guide for Parents Living Apart.

In addition, a similar committee of Massachusetts judges, practitioners and mental health professionals produced Model Parenting Plans, which in many ways correspond to the recomendations suggested by the earlier Planning for Shared Parenting brochure.

At Kelsey & Trask, P.C. we have created a Parenting Plan Worksheet to help you visualize these Model Parenting Plans and/or other Custom parenting plans on a color-coded Calendar.

Tuesday, July 26, 2011

Is Divorce different for Men & Women?

I recently read an article written by a professional whose firm handles divorce cases for women only. At Kelsey & Trask, P.C. we represent both men and women going through divorce, and the statement made by this other firm got me thinking. If you choose only to represent women then you must think there is something unique about how they experience divorce which you think you can help with (or conversely something unique about men's experience that you don't want to help with).

In my experience having represented both men and women, everyone experiences the loss, the frustrations, the anger, the relief, and all of the other emotions of divorce differently. Although I have noticed some similarities across cases, they often depend more on the financial similarities between those cases, than the role of men or women.

For example, there are still many cases which fit into the traditional model of a homemaker wife and wage earning husband. There are of course similarities across cases about how homemaker wives experience financial distress and may need more assistance in understanding the finances of the marriage. Similarly, when the mother has been the primary caregiver for the children, father may need more assistance in understanding how to parent effectively on his own.

However, I have also handled cases where the wife was the main wage earner, and the husband the primary caregiver to the children. And much more typically today, we handle cases where families share these responsibilities.

Because individual cases vary so greatly, I don't think any generalizations about how women or men experience divorce differently can be all that useful. The best advice for anyone going through divorce I believe applies equally to both men and women: be calm, be reasonable, be forthcoming, and seek help when you need it.

Monday, July 25, 2011

Is a Friendly Divorce Possible?

This question was recently discussed on a LinkedIn discussion board that I follow, and the consensus was clearly that friendly divorce IS possible. This is also the message of a recent Wall Street Journal article: The Divorce Generation.

That doesn't mean that a friendly divorce is easy or even possible in every case. But more and more people who have reached the unfortunate conclusion that their marriage is over, do not want to have the drawn out and angry divorce that their parents had. To respond to this desire to find a better way, more and more attorneys are offering alternative dispute resolution services, to end your marriage in a better, more civilized way.

Both mediation and collaborative divorce offer ways to accomplish the "friendly divorce." To learn more about these options click the links below:

Mediated Divorce
Mediation Pros and Cons

Collaborative Divorce
Collaborative Pros and Cons

Friday, July 22, 2011

What is Split Custody?

Split Physical Custody usually refers to a situation where there are multiple children and one or some of the children reside primarily with one parent, while other of the children reside primarily with the other parent. Split custody is unusual because it is more typical that the parenting schedule that works for one child will work best for the other children as well.

However every family situation is unique which is why parenting plans should be tailored to each individual family, and in some situations it may be appropriate,or even beneficial, to divide children between households.

Thursday, July 21, 2011

Alimony Reform Act approved Unanimously by the House

According to the Boston Globe, the Massachusetts House has approved the Alimony Reform Act of 2011 unanimously and the bill now waits for a vote by the Senate.

To read more about the act visit MassAlimonyFormula.com

Friday, July 1, 2011

Is Child Support Different if we have Joint Custody?

In Massachusetts, the Massachusetts Child Support Guidelines are based upon the child(ren) having a primary residence with one parent and spending approximately one third of the time with the other parent.

According to the Guidelines, when two parents share equally, or approximately equally, the financial responsibility and parenting time for the child(ren), the child support shall be determined by calculating the child support guidelines twice, first with one parent as the Recipient, and second with the other parent as the Recipient. The difference in the calculations shall be paid to the parent with the lower weekly support amount.

To make this "cross-guidelines" calculation a little faster and easier, we have created a Joint Custody Child Support Worksheet (also available in a mobile version for use on smart phones).

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