Monday, December 17, 2012

Newtown Tragedy: Actions Speak Louder

These are the victims of the school shooting that occurred on the morning of Friday, December 14, 2012 at an elementary school in Newtown, Connecticut.

We have purposefully not included a link to a news story in this post because the news is concentrating on the details of the gunman's life.  We believe that is a mistake.  Here is the information that we believe is important and undisputed:

  • All of these victims deserved a longer life, and a better ending to their story.
  • This tragedy was preventable, and future tragedies like this are preventable.
  • Everyone of us has the ability to contribute in some way towards making our country a better place where violence like this is a history lesson instead of a headline.
  • The only way that we can take away the power of one bad man to write the ending for these victims, is to change that ending by recognizing our ability to contribute, and taking action.

We have all had three days now to voice our pain and outrage.  As a country we must experience this grief and we must find a way to deal with it.  Whether we individually grieve publicly or privately, we must accept that everyone will grieve these victims in their own way.  If you have been on facebook or twitter this weekend, it is clear that many of us are experiencing anger or depression in reaction to these events.  And while anger is a natural part of the grieving process, the direction of anger is not always rationally linked to the cause, which is why the anger of this weekend must give way eventually to acceptance.

But what does acceptance mean?  Does it mean we should forget what happened?  Does it mean we are powerless to prevent future tragedies?


Acceptance means that we must accept that we cannot change the past.

 We cannot save the victims of Newtown.  
But we can remember them.  

We remember them by letting go our anger and depression, and by taking positive action for the future.  Whether small or large, every action has a reaction.  Here are just some of the ways that you can make a difference:

Remember the Heroes:

Numerous stories have emerged regarding teachers who protected their students on Friday morning, including at least one who gave her life doing so, Victoria Soto.  These teachers were not trained to deal with gunfire.  Their job description does not include saving lives by giving theirs.  But they became heroes anyway.  They stood up to violence and fear, and saved lives with their courage.  Remember that sacrifice.  Talk about it.

Make sure our children know that 
everyday people can be Heroes. 

Remember the Helpers:

Fred Rogers taught us that in any tragedy there is hope because you can always see the people who react and respond:  the Helpers.  Police officers, firefighters, nurses, doctors, paramedics, and more all put aside their personal fears and grief to help the victims and their families.  Remember the importance of those people that choose to do those jobs, and who handled themselves professionally in a time of crisis.  Nobody can change the past and these helpers couldn't save the victims, but they modeled for us the way in which we heal from tragedy.  By helping the victims and their families they reduced the trauma those people experienced as much as was possible in the given situation.  Remember the helpers, and strive to help where help is needed.

Be a Helper:

You can help the Newtown Victims by donating to a local non-profit.

Or you can help people in your community who are the victims of violence.  The Mass.gov website has a list of resources for violence prevention and specifically for domestic violence prevention.  These include both government resources that you can educate yourself about, and non-profit organizations that you can volunteer with or donate to.

Of course, these are just some of the ways that you can be a helper in Newton or your community to help protect others from violence.

Promote Gun Safety and Meaningful Debate:

Guns were a part of the Newtown tragedy and they must be a part of the discussion.  But it is impossible to already know the solution before you completely understand the problem.  Preventing future tragedies like Newtown requires more than signing a petition, or posting on social media that there are more gun deaths in the U.S. than in other countries.  Supporters and opponents of private firearms ownership need to engage in meaningful communication to discuss solutions that protect both lives and liberties.

Like too many debates in this country, many would rather be polarizing in their statements and beliefs than learn from each other.

In Collaborative Divorces, we take two people who have every reason to distrust each other and we force them to talk about how they can work together to resolve their disputes.  This requires effective communication about how each person feels and what their goals are.  It is often uncomfortable, sad, angry, or frustrating.  But the result is usually solutions that both people can rebuild their life from.

If divorcing spouses can having a meaningful conversation about solutions by using effective communication, then why can't people on opposite sides of the gun control debate?

Can we use 10 Tips for Better Collaborative Communication to have a meaningful discussion about gun control?

Calling someone a gun-nut violates #3.  Assuming that gun control means they want to take away all your guns and institute a police state violates #10.

Prevention requires that we all grow up and learn how to communicate effectively.  If you truly care that our country becomes a safer place, then take meaningful steps to make that happen:

Non gun owners need to recognize that they have something to learn from gun owners.  Read the 10 tips, print them out, and then ask a gun owner to have lunch with you and have a conversation that abides by those tips.  Ask them about their interest in firearms.  Ask them how they think we can practically prevent gun violence.   Ask them about the difference between a rifle, a shotgun and a handgun, and about the difference between a semi-automatic and an automatic weapon.  Ask them why there are different types of firearms and different types of ammunition.  Ask them about the proper way to store guns, and how to prevent unauthorized access.  Ask them about regulations or restrictions that they would support vs. those they wouldn't, and why.

Listen to the answers.

Owners of firearms need to recognize that civilized society requires proper safety precautions to be respected or implemented around the ownership and use of potentially hazardous items.  Read the 10 tips, print them out, and then ask a non gun owner to have lunch with you and have a conversation that abides by those tips. Ask them about why they don't have an interest in firearms.  Ask them what, if anything, scares them about firearms.  Ask them about what types of information would reduce their fears.  Ask them how they think guns are similar or dissimilar to other potentially dangerous items or tools.  Ask them about what types of regulations or restrictions could make them feel more safe.

Listen to the answers.

After having this conversation and actually listening to each other, try to agree on two things that either you individually or your government (whether municipal, state or federal) could do to help prevent future gun violence in any form.  Write down those two agreements and then take action to make them happen.  If your agreements involve something that the government can do, then contact the appropriate level of government and request that your representative take that action: Contact your Elected Officials

At the very least you can help yourself and your community by learning about the risk factors for gun violence, and gun safety at the following links:

Studies and articles regarding Gun Violence and Children.

Firearms Responsibility in the Home

Obtain a Safety Kit Cable Style Gun Lock

Take a course in Home Firearm Safety

Never stop learning, never stop asking questions, and never stop looking for solutions that honor the memories of the fallen.

Saturday, December 8, 2012

A Tree Grows in your Office: A Metaphor for Divorce

We all know that to have a successful marriage, the relationship has to be nurtured and fed.  Spouses who do not pay attention to the needs of their relationship are doomed to grow apart instead of growing together.  But just because a marriage withers on the vine, doesn't mean that a divorce has to result in sour grapes.

Many of the problems that prevent people from having a successful divorce stem from the false assumption that divorce is an endpoint.

Divorce, like marriage, is a relationship.  Anyone who has been through a divorce can dispel the notion that a divorce is just an event, begun one day and over the next.  Divorce is a process, that takes time, requires patience, and still involves a relationship between spouses.  And when spouses have children together, that relationship doesn't end when the divorce becomes final, it continues for graduations, weddings, grandchildren and more.

Divorce, like marriage, is a relationship. 

Both at my firm and in many of the professional organizations I belong to, we are often searching for better ways to explain divorce to our clients.  If you begin by asking questions, you learn a lot about the potential client, but they don't learn much about you.  If you begin by trying to explain "processes" clients learn how they can get divorced, but not how to get divorced well.  Maybe we need a new model, a story that explains how a potential client can get from the end of their marriage to the beginning of the next stage of their life.

That story, like many stories, starts with a seed.

Now you might think that a bitter pill would be a better metaphor for the end of a marriage, but trust me, a seed is better.  Seeds have both a before and after, but you can't necessarily tell much about either of those places just by looking at the seed itself.

Many divorcing clients appear the same at the moment they enter my office, determined but a bit confused, having goals but also needing direction.  Like a seed, their current state is the result of a relationship that came before.   That relationship determines what kind of seed it is, but what the seed will grow into is not only controlled by its history.  It also matters where that seed landed, and how it is nurtured.

The organic process of how divorce cases proceed from start to finish, is similar in many ways to the growth of a tree from a seed.  Our goal is to develop a strong tree, able to withstand future storms.  But growth and strength don't happen overnight.  In fact, usually the process is too slow to be seen by the naked eye, but just because the process is slow doesn't mean the tree is standing still.

As one of my mentors used to say, settlement only happens when the case is ripe.  Just like the organic growth of a tree, settlement requires the addition of necessary ingredients to blossom.  A major component of settlement is time, but that's not enough.  You may also have to shine light on parts of a client's life and marriage that they'd rather leave dark.  But, in the end, the only way to wash away the dirt and create strength from vulnerability is to combine all of these elements to feed the next stages of life in a way that is balanced and leaves room for further growth.

And just as proper nurturing, light and time can lead to a healthy and strong future, ignoring any of these key elements leads to stunted growth.  Proper counsel for divorce clients requires paying attention to these needs for our clients, and as corny as it sounds helping them choose what kind of tree they want to be, and where they want to grow.

Mediation is often represented as a single tree, or leaf.  I'm not sure how so many mediators came to choose this as their symbol, but I think it fits.  Mediation doesn't take place among the forest of other divorces, or in the public eye of court.  Instead it takes place in the mediators office, away from other divorcing spouses and their situations.

A hallmark of mediation is about letting each set of clients come to a solution that they agree works best for their unique family.  Though comparisons may happen when they leave the mediators office, mediation doesn't require a comparison to how other people grew their seed, it's only about those two people and how they want to resolve their problems.

When two spouses are both independent and have the ability to grow their strength from within, then they only need the gentle nurturing of a mediator to reach a successful divorce.

But sometimes, clients need more:

Collaborative Divorce is about seeing the forest through the trees.  Similar to mediation, it takes place outside the public court forum.  But it is different than mediation, in that each client is provided with more support to help them grow within the protection of a professional forest.

Collaborative divorce is often referred to as a team approach to divorce, but team implies everyone working together all of the time (and billing the clients for all that time).  In reality, collaborative divorce is more like a set of gardening tools.  Each tool or person has a role that helps the spouses grow the strength needed to support their own forest after divorce.  Attorneys have different skills and training than coaches and financial planners.  Each team members provides different nurturing, or strengthening skills to allow both spouses to grow together and coexist, even if they didn't start out in equal soil.

Collaborative divorce lends itself well to complicated issues, or imbalances that might prevent successful mediation because the interdisciplinary nature of the different professionals allows them to fulfill the needs of clients who wouldn't have been able to grow to the same heights on their own in a mediation.  And since it also takes place far from the court house, the reflection of other groves doesn't block sunlight from this forest, allowing each tree to grow with only the restrictions they place on themselves.

But what if mediation and collaborative divorce are not options.  Is all hope lost?  Will my tree be cut down before it reaches it's full potential?  I'm not going to lie; it's harder to find common ground in the court process.  But that doesn't mean it's impossible:

Litigation takes place inside and outside of the courthouse.  While litigation requires that you always track the shadow of the law, you don't have to let it block out all the light.

Court is not an organic process.  It feels as unnatural as the sound-proofed walls that lined the courtrooms.  The litigation process is designed to collect and reflect enough of the natural light of your family, to allow you to survive, but not necessarily thrive.  Like a plant that's kept inside, it's not your natural environment, but with the right help it won't kill you.  Your growth will be restricted based on the rules of the court, and still might result in settlement but you will have to work harder to make that happen.

In some ways this means that the attorney you choose to help you in court is even more important than who you might choose for mediation or collaborative divorce.  If you choose a litigator who only knows the path to trial, then you will most certainly be firmly rooted in that path, and will have to take your chances with the Judge.  But if you choose a lawyer with the experience and drive to settle cases, they then will help you see the many paths that exist, even when you're limited to a particular landscape.  It might be harder to get settlement to ripen in the harsh unnatural light of court, but if the case is nurtured and prepared properly it is still possible.

Sustainable Growth

If you'll allow me one final stretch of the metaphor, remember that personal growth does not end at the end of a marriage, nor does it end when a client receives their Judgment of Divorce absolute. Proper care of a case requires consideration of how future growth will be supported, whether it can be made self-sustaining and whether the path you've provided will allow for sustainable growth for both the clients and their seeds.

Divorce is not an easy or happy subject, but like any transition in life it can be viewed as an end or a beginning.  Ending cases shouldn't be the goal.  The goal should be helping clients understand how to stretch their branches towards the light of better days.

Monday, November 5, 2012

How to explain the new Domesticated Animal Restraining Order provisions to your pet!

On October 31, 2012, a new statute took effect in Massachusetts adding protection for domesticated animals in restraining order cases.  This does not mean that you can obtain a restraining order for your puppy from that feisty dog next door.  The new provisions only allow for a court order relating to the possession, care and protection of a pet when a temporary or permanent vacate, stay away, restraining or no contact order is already in effect or has been requested.   In simpler terms: this new law allows custody orders and protection orders for pets to protect them from the abusers of their human owners.

So what do you do when your pet asks you how this new law affects them?  We've provided some helpful answers to make that conversation go more smoothly:

"Super Awesome Best Friend, how can I help protect you from that angry guy?"

"That's not something you have to worry about anymore.  The court provided me with an order that prevents him from coming near our home.  I also filed a new form that made sure that the court included you in that order.  The court ordered that you will continue to live with me and that he can't abuse or threaten either of us. "

These additional orders can protect pets by assigning their care and protection to the Plaintiff and by ordering the Defendant to refrain from abusing, threatening, transferring or otherwise disposing of a domesticated animal.

"My plot to scare away that crazy woman by showing her a disemboweled chipmunk was clearly successful.  You're welcome!"

"Okay, that's not really a question, but you just reminded me that I didn't ask for protection for you when I obtained my restraining order.  Although I know you can protect yourself, I remember recently that she threatened you after that chipmunk stunt.  Tomorrow I'll go down and file a request to add protection for you to the restraining order."

A request doesn't have to be filed with the original restraining order but can be filed afterwards when an order is already in effect.

"Will this new law help protect me from sharks?"

Unfortunately, the statute is not for use on its own to protect animals from potential abuse or being eaten by other animals.  If someone you are in a relationship with ever tries to feed your fish to the sharks, then you may be able to get the court's help to protect them.  However, unless your fish is particularly valuable, it is unlikely the court will take the abuse or custody of a fish seriously.  Try explaining that to your pet fish, though, am I right?  Unless you're best friends with Aquaman, you may just need to change the subject.  In a few seconds, the fish will just forget they asked anyway.

"I heard the fish weren't safe, but what about me?"

"The statute does not define "domesticated animals."  Since you are so cute and cuddly, I'm sure the Judge would want to ensure that you were protected from any abuse."

Of course that's just speculation, and the reality is that it is impossible to tell where Judges will draw the line on this new law.

While the goal of protecting animals from abuse is a lofty one, it seems a little absurd to think about protecting pets as a priority when domestic violence is such a serious danger to the human victims.  While we hope every victim's pet is safe from abuse, we also hope that no victims are left unheard because a court docket is clogged with pet custody issues.

Wednesday, October 31, 2012

What should you tell your child about your Evil Ex?

My oldest daughter and I have found a TV show that we both can agree on: Disney's Phineas and Ferb (new episodes Fridays on Disney Channel, and available on Netflix Instant Watch).  The basic plot of the show is that two boys, Phineas and Ferb, create an unbelievable invention in each episode and have an adventure, while their older sister, Candace, tries to catch them in the act of doing something dangerous.  There is a side plot in most episodes involving their pet platypus, Perry, who also happens to be a secret agent foiling the plot of Dr. Doofenshmirtz, an inept evil scientist.

Dr. Doofenshmirtz
(as seen in Phineas and Ferb)
The reason the show also appeals to adults is that the characters are well rounded and experience everyday situations in addition to the incredible plot adventures.  In the episode I Scream, You Scream, for instance, we find out that Dr. Doofenshmirtz has an ex-wife, Charlene Doofenshmirtz, and a daughter, Vanessa Doofenshmirtz.  Vanessa is a teenager who doesn't enjoy spending time with her father and would rather be with her friends (shockingly typical).  In this episode she tries to explain to her mother that her father is evil and is always trying evil schemes while she is with him (admittedly a little less typical).

Vanessa is in fact right and Dr. Doofenshmirtz, although inept, is evil.  However, Charlene, Vanessa's mother, assures her daughter that her father is not evil.  This episode proceeds with an attempt by Vanessa to get her father busted for being evil, while at the same time Candace is trying to bust Phineas and Ferb for their latest adventure.  Of course, they both fail.

But when Vanessa fails to have her mom catch her dad in one of his evil schemes, I was left wondering whether her mom already knew.  If Charlene and Dr. Doofenshmirtz were married surely she would be aware of his evil schemes.  In fact those schemes, and all the money he must spend on them, were probably the basis for their divorce.  Why would she pretend not to know and assure her daughter that her father wasn't evil?

As a divorce practitioner, I have experience working with couples trying to co-parent and have heard all kinds of stories about "evil exes".  However, in every case involving children I always give the same advice regarding what to tell the children.  Tell them simply that both of their parents love them, and they will both continue to be involved in their lives.  I tell my clients to "Say only nice things about your ex to your children, even when you don't believe them to be true."

Children's identities are tied to both of their parents.  As part of growing up we eventually learn of our parent's fallibility and mortality, and those are difficult lessons because they force us to face those same traits in ourselves.  For children of divorcing and divorced parents, they are forced to learn that their parents (and therefore themselves) can fail at relationships.  This is why children grieve the marriage just as adults do, even though they grieve it in different ways.

If you also insult or tear down that child's other parent, you are forcing them to experience even greater loss and doubt during an already difficult time.  Any action that damages a child's opinion about their parent, also damages that child's own self-esteem, especially at a time when they are already vulnerable to doubt and confusion about their identity.

Wanting your children to be healthy and self-confident, therefore, requires building their confidence in both you and your ex.  In the episode I described above, Charlene could have agreed with Vanessa that her father was evil, or at the very least quite weird.  In fact, it probably would have been more honest.  But instead she tells Vanessa "your father isn't evil, we just didn't get along.  We wanted different things."  She doesn't explain further, she simply insists that Vanessa still spend the weekend with her father.

One of the things I enjoy about Phineas and Ferb is how well the show models behavior for children.  Phineas is always upbeat, creative, inventive and whenever someone is rude to him he responds with kindness.  I guess I shouldn't be surprised to see the show model such great behavior for adults as well.  Many divorcing parents could learn from Charlene Doofenshmirtz's example.

Monday, October 29, 2012

Where do the candidates stand on DOMA?

The Defense of Marriage Act (DOMA) has been held unconstitutional by both the 1st and 2nd U.S. Circuit Courts of Appeals.  While we wait to see whether the Supreme Court will review these cases, you may have heard that there is an election coming up.  Whether or not the Supreme Court overturns DOMA, congress has the authority to repeal the Act if they so chose.  Since the major party presidential debates ignored this issue, you may not be fully aware of the party platforms on this issue.

Each of the following parties has a presidential candidate running for president in 2012, and below we have excerpted their platforms' references to DOMA, same-sex marriage, and discrimination based on sexual orientation (click the links to read the entire platform):

2012 Republican Party Platform excerpts:

"Defending Marriage Against An Activist Judiciary
A serious threat to our country’s constitutional order, perhaps even more dangerous than presidential malfeasance, is an activist judiciary, in which some judges usurp the powers reserved to other branches of government. A blatant example has been the court-ordered redefinition of marriage in several States. This is more than a matter of warring legal concepts and ideals. It is an assault on the foundations of our society, challenging the institution which, for thousands of years in virtually every civilization, has been entrusted with the rearing of children and the transmission of cultural values.

A Sacred Contract: Defense of Marriage

That is why Congressional Republicans took the lead in enacting the Defense of Marriage Act, affirming the right of States and the federal government not to recognize same-sex relationships licensed in other jurisdictions. The current Administration’s open defiance of this constitutional principle—in its handling of immigration cases, in federal personnel benefits, in allowing a same-sex marriage at a military base, and in refusing to defend DOMA in the courts— makes a mockery of the President’s inaugural oath.  We commend the United States House of Representatives and State Attorneys General who have defended these laws when they have been attacked in the courts. We reaffirm our support for a Constitutional amendment defining marriage as the union of one man and one woman. We applaud the citizens of the majority of States which have enshrined in their constitutions the traditional concept of marriage, and we support the campaigns underway in several other States to do so."

2012 Democratic Party Platform excerpts:

"Freedom to Marry. We support the right of all families to have equal respect, responsibilities, and protections under the law. We support marriage equality and support the movement to secure equal treatment under law for same-sex couples. We also support the freedom of churches and religious entities to decide how to administer marriage as a religious sacrament without government interference.

We oppose discriminatory federal and state constitutional amendments and other attempts to deny equal protection of the laws to committed same-sex couples who seek the same respect and responsibilities as other married couples. We support the full repeal of the so-called Defense of Marriage Act and the passage of the Respect for Marriage Act.

Gay Rights as Human Rights. Recognizing that gay rights are human rights, the President and his administration have vowed to actively combat efforts by other nations that criminalize homosexual conduct or ignore abuse. Under the Obama administration, American diplomats must raise the issue wherever harassment or abuse arises, and they are required to record it in the State Department's annual report on human rights. And the State Department is funding a program that finances gay rights organizations to combat discrimination, violence, and other abuses. "

2012 Green Party Platform excerpt:

"5. Sexual Orientation and Gender Identity

In keeping with the Green Key Values of diversity, social justice and feminism, we support full legal and political equality for all persons, regardless of sex, gender, sexual orientation, or gender identity, characteristics, and expression.

a. The Green Party affirms the rights of all individuals to freely choose intimate partners, regardless of their sex, gender, gender identity, or sexual orientation.

b. The Green Party recognizes the equal rights of persons who identify as gay, lesbian, bisexual, intersex, transsexual, queer, or transgender to housing, jobs, civil marriage, medical benefits, child custody, and in all areas of life including equal tax treatment.

c. The Green Party will be inclusive of language in local, state and federal anti-discrimination law that ensures the rights of intersex individuals and prohibits discrimination based on gender identity, characteristics, and expression as well as on sex, gender, or sexual orientation. We are opposed to intersex genital mutilation.

d. The Green Party affirms the right of all persons to self-determination with regard to gender identity and sex. We therefore support the right of intersex and transgender individuals to be free from coercion and involuntary assignment of gender or sex. We affirm the right of access to medical and surgical treatment for assignment or reassignment of gender or sex, based on informed consent.

e. We will pursue legislation against all forms of hate crimes, including those directed against people who identify as lesbian, gay, bisexual, queer, transgender, and intersex. Offenders must pay compensation to the LGBTIQ people who have suffered violence and injustice.

f. The Green Party will end all Federal military and civilian aid to national governments whose laws result in the imprisonment or otherwise bring harm to citizens and residents based on sexual orientation, or gender identity, characteristics, and expression.

g. The Green Party will enact a policy that the U.S. Government recognize all international marriages and legal equivalents, such as civil unions, in processing visitor and immigration Visas.

h. The Green Party would repeal don't ask don't tell, abolish security clearances denied on the basis of sexual orientation and/or gender identity, and supports the rights of defense personnel and volunteers to serve their country openly without penalty irrespective of sex, sexual orientation, and gender identity.

i. The Green Party would end security surveillance and covert infiltration of organizations that promote equal rights on the basis of sexual orientation and gender identity."

2012 Libertarian Party Platform excerpt:

"1.3 Personal Relationships

Sexual orientation, preference, gender, or gender identity should have no impact on the government's treatment of individuals, such as in current marriage, child custody, adoption, immigration or military service laws. Government does not have the authority to define, license or restrict personal relationships. Consenting adults should be free to choose their own sexual practices and personal relationships.

3.5 Rights and Discrimination

Libertarians embrace the concept that all people are born with certain inherent rights. We reject the idea that a natural right can ever impose an obligation upon others to fulfill that "right." We condemn bigotry as irrational and repugnant.  Government should neither deny nor abridge any individual's human right based upon sex, wealth, ethnicity, creed, age, national origin, personal habits, political preference or sexual orientation. Parents, or other guardians, have the right to raise their children according to their own standards and beliefs.  This statement shall not be construed to condone child abuse or neglect."

2012 Justice Party Platform excerpt:

"• End discrimination based on race, gender and sexual orientation
 • Support marriage equality"

2012 Constitution Party Platform excerpt:


No civil government may legitimately authorize or define marriage or family relations, as affirmed by the 10th amendment, delegating to the people as our founders understood the family as necessary to the general welfare.

We affirm the importance of Biblical scripture in the founders’ intent as eloquently stated by Noah Webster: “The moral principles and precepts contained in the Scriptures ought to form the basis of all our civil constitution and laws… All the miseries and evils which men suffer from vice, crime, ambition, injustice, oppression, slavery, and war proceed from their despising or neglecting the precepts in the Bible.”

The law of our Creator defines marriage as the union between one man and one woman. The marriage covenant is the foundation of the family, and the family is fundamental in the maintenance of a stable, healthy and prosperous social order. No government may legitimately authorize or define marriage or family relations contrary to what God has instituted. We are opposed to any judicial ruling or amending the U.S. Constitution or any state constitution re-defining marriage with any definition other than the Biblical standard.

We call for an end to all taxation and economic formulas that discourage marriage, incentivize co-habitation and child bearing outside of marriage or authorize or provide government funding for policies and programs that further erode the jurisdiction of the family or parental rights.

We reject the notion that homosexuals, transgenders or those who are sexually deviant are deserving of legal favor or special protection, and affirm the rights of states and localities to proscribe offensive sexual behavior. We oppose all efforts to impose a new sexual legal order through any courts or legislatures. We stand against so-called "sexual orientation" and "hate crime" statutes that attempt to legitimize inappropriate sexual behavior or stifle public opposition to its expression. We oppose government funding of "partner" benefits for unmarried individuals. Finally, we oppose any legal recognition of homosexual or civil unions.

We recognize that parents have the fundamental right and responsibility to nurture, educate, and discipline their children. We oppose the assumption of any of these responsibilities by any governmental agency without the express delegation of the parents or legal due process. We affirm the value of the father and the mother in the home, and we oppose efforts to legalize adoption of children by homosexual singles or couples."

Thursday, September 27, 2012

When does 30 + 90 not equal 120? In Divorce Court!

As we covered in a previous post (What happens after my Divorce Agreement is approved by a Judge?), there is a 90-120 day waiting period after your divorce is allowed before it becomes final in Massachusetts. But that 90-120 day waiting period may not be exactly 90-120 days from your settlement date:

If you filed a Joint Petition for Divorce in Massachusetts then you will participate in an uncontested divorce hearing and the Judge will then issue Findings of Fact the day of the hearing. 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 at least 120 days after the divorce hearing date.

If you filed a Complaint for Divorce then your case will end either with a trial (if you don't settle) or an uncontested divorce hearing (if you settle). If you reach an Agreement, then a Judgment of Divorce Nisi will issue and be effective as of the date of the uncontested divorce hearing, and it will become Absolute after a further ninety (90) days. This means that if you file a Complaint for Divorce you are not legally and officially divorced until at least 90 days after the divorce hearing date.

Since the statute (M.G.L. c. 208 s 21) simply calls for judgments to become final after the "expiration of ninety days", why would it take longer? Because the Court is not open on holidays and weekends, and this can affect the final effective date. In a Joint Petition this can also affect the date the Judgment actually issues as well, since it is thirty days after the hearing, and not the same day as the hearing as in a Complaint for Divorce.

To make sense of all this, it helps to view an example:

Assume that you file a Joint Petition for Divorce and your uncontested hearing date was on April Fools Day, Friday, April 1, 2011 (you may read into the choice of that date whatever you choose to).

Thirty days after April 1, 2011 was Sunday, May 1, 2011 (TIP: if you don't like counting on a calendar use Wolfram Alpha for quick date calculations). Since the court is not open on Sundays, the Judgment of Divorce Nisi in this case would have issued on Monday, May 2, 2011.

Now to calculate the Judgment of Divorce Absolute date, we would count 90 days after May 2, 2011, which results in Sunday, July 31, 2011. Again, the court isn't open on Sunday, so the date of Divorce Absolute shifts to Monday, August 1, 2011.

If you had simply added 120 days to April 1, 2011, you may have thought that your Divorce Absolute date was Saturday, July 30, 2011, when in fact the actual date was Monday, August 1, 2011. While you could still celebrate on the previous Saturday, the actual date does have a legal effect on certain issues (to read more on those issues read our previous post: What is the purpose of the Divorce Nisi waiting period?)

In this example 30 + 90 = 122. Welcome to math in the Divorce court!

Thanks to Robin Chaykin, Esq. of Fraser & Galanopoulos for bringing this discrepancy to our attention!

Tuesday, September 25, 2012

Divorce in Massachusetts: 5 Things You Need to Know to Get Started

There are five questions you will need to answer to get started with a divorce in Massachusetts:
1. CAN you file for divorce in Massachusetts?
2. WHY are you getting divorced?
3. HOW will you get divorced?
4. WHO can help you get divorced?
5. WHERE will you get divorced?

We answer each of these questions below:

1. CAN you file for divorce in Massachusetts?

If you have been a resident of Massachusetts for one year then you can file for divorce in Massachusetts. Even if you have not been a resident for one year, you still may be able to file for divorce in Massachusetts but it may be complicated to determine.

We created an infographic to clarify the confusing question of jurisdiction over a divorce case in Massachusetts by consolidating the statutes and case law into one chart available here: Can I file for divorce in Massachusetts? An Infographic.

Just because you can file for divorce in Massachusetts, however, does not necessarily mean the court has jurisdiction over all issues in your case, as we explain in greater detail here: Can I be sued for Divorce in Massachusetts if I don't live there but my spouse does?. If your case involves residency, property, or children living in multiple states, you should definitely consult with an attorney because these issues can present complicated determinations and possibly multiple court cases.

If you have determined that you can file in Massachusetts, you now have to answer:

2. WHY are you getting divorced?

There are three different statutes in Massachusetts that provide grounds upon which the Probate & Family Court can grant you a divorce.

The Fault Statute: M.G.L. ch. 208 § 1 authorizes the Courts in Massachusetts to grant divorces to residents of Massachusetts for a specific list of "fault" situations: adultery; impotence, desertion continued for one year; gross and confirmed habits of intoxication caused by voluntary and excessive use of intoxicating liquor, opium, or other drugs; cruel and abusive treatment; imprisonment; or, if a spouse being of sufficient ability, grossly or wantonly and cruelly refuses or neglects to provide suitable support and maintenance for the other spouse.

These are called "fault" divorces because obtaining a divorce for any of these reasons requires that you first prove that one spouse has caused the divorce by doing one of the things listed, i.e. it is "their fault" that the marriage has broken down.  It is unusual under the current state of Massachusetts law to file for "fault" divorces because they require this extra evidence of fault before a divorce can be granted.

The No-Fault Statutes: M.G.L. ch. 208 § 1A and M.G.L. ch. 208 § 1B authorize the Courts in Massachusetts to grant divorces to residents of Massachusetts for "an irretrievable breakdown of the marriage." The irretrievable breakdown standard simply requires that the Court find that at least one of the parties in the marriage believes (subjectively) that their marriage is over and that there is no chance of reconciliation.

If you are filing for a No-Fault Divorce (the most likely option) then you may not have to litigate your case.  There are other (oftentimes better) options for:

3. HOW will you get divorced?

There are four paths you can take to get divorced: Direct Settlement Negotiation, Litigation, Mediation, or Collaborative Divorce.  We created an infographic to help you visualize the different tracks you can take, and how you might end up moving from one track to the other (as well as some of the waypoints along the way):  The Divorce Roller-Coaster: An Infographic of Options.

Each path has strengths and weaknesses and we examined some of these in the following posts:

Mediation, Collaborative Law or Litigation: What's your Vote?

The Cleavers Divorce: A Mediation

The Huxtable's Divorce: A Collaborative Divorce

The Honeymooner's Divorce: A Litigation Case

To learn more about the pros and cons of each option visit our: Litigation site, Mediation site, or Collaborative Divorce site.

Regardless of which of these paths you believe is best for your case, you will likely benefit from some help:

4. WHO can help you get divorced?

An attorney can help you with all of the steps in the divorce process. An experienced Massachusetts divorce attorney can answer or help you answer all of the questions raised at the beginning of your case (as covered in this post); help guide you through the process that you choose; assist you in drafting necessary documents, negotiating and presenting your case; and prepare and explain any settlements in your case. You can hire an attorney to help you with all of these elements of your case, or just parts of your case (through Limited Assistance Representation).

In addition, whatever path you choose to get divorced, there are many instances where other professionals can assist in moving a case forward and reduce the cost spent on attorney's time as described in our post: Besides an Attorney, what professionals might be involved in my Divorce case?

And finally, even once you've answered the who, what, why and how, you still need to know:

5. WHERE will you get divorced?

In Massachusetts, the county that you file for divorce in is controlled by M.G.L. c. 208 s 6. You should file in the probate court in the county where either you or your spouse lives, unless one of you still resides in the county where you last lived together, in which case you should file in that county. For clarification on how to apply these rules, and to read about two exceptions to the rules, read this post: What County do I File my Divorce in? Click here for Directions and Phone Numbers to the Probate & Family Courts in each county.

Tuesday, September 18, 2012

The Divorce Roller-Coaster: An Infographic of Options

There are four tracks you can choose from to get divorced in Massachusetts: Direct Settlement Negotiation, Litigation, Mediation, or Collaborative Divorce. We created the following infographic to help you visualize the different tracks you can choose from, and how you might end up moving from one track to the other (as well as some of the important waypoints along the way):

You may reprint or distribute this Infographic on your website so long as the copyright and contact information for Kelsey & Trask, P.C. remains attached to the bottom of the image.

To reprint copy and paste the following code:

Click here for more information about Divorce Options in Massachusetts.

Tuesday, September 11, 2012

Can I file for divorce in Massachusetts? An Infographic

The following chart displays the paths for determining whether you qualify to file a divorce in Massachusetts. Our hope is that this infographic can help clarify the confusing question of jurisdiction over a divorce case in Massachusetts by consolidating the statutes and case law into one chart.

As we discussed in a previous post, just because you can file for divorce does not necessarily mean the court has jurisdiction over all issues in your case. If your case involves residency, property, or children living in multiple states, you should definitely consult with an attorney.

You may reprint or distribute this Infographic on your website so long as the copyright and contact information for Kelsey & Trask, P.C. remains attached to the bottom of the image.

To reprint copy and paste the following code:

Click here for more information about Divorce in Massachusetts.

Thursday, August 16, 2012

CPR: Co-Parenting with Respect: A program designed for parents who want to co-parent more effectively.

Guest Post Introduction: Jill Reiter LICSW and 2 other highly trained and experienced mental health professionals combined their education, years of experience and knowledge to create a well thought out educational program that addresses the complications involved in co-parenting through and after divorce. This program has been implemented in the Denver area with great success! The Co-Parenting with Respect or CPR program is now available in Concord, MA.

Jill provided us with the following guest post describing the CPR Program:

CPR: Co-Parenting with Respect:
A program designed for parents who want to co-parent more effectively.

Co-Parenting with Respect through and after divorce is a concept that has been plaguing parents, attorneys, therapists, judges and children for years. How do we assist families in high conflict to continue to interact respectfully in an effort to offer their children what they need in spite of their current personal struggles?

How does the CPR Program work?

The CPR Program involves the whole family:

Any parents who were never married, separating, divorcing or post divorce, which are experiencing conflict in the area of parenting their children. Parents must attend together. If remarried or co-habitating step parents must attend too. Parents with restraining orders may get this modified and attend as well. (Safety concerns will be considered and precautions instituted)

The CPR program gives everyone a voice:

The CPR program in total is 10 hours over 6 weeks and is delivered in 3 phases.

1. Child Voice session: the children use the first hour only! for purposes of gleaning information on how the children are experiencing their parents conflict and what they would like to see change. We do this by giving the children developmentally appropriate activities that allow the children to express their thoughts and feelings in a safe and constructive manner. We tell children that this will be used for the purposes of helping their parents to better meet their needs and work out their differences (or some variation thereof).

2. Parent’s sessions: Total of 4 two-hour sessions that delve into the heart of respectful communication, how this relates to the needs of their children and exercises on how to implement the techniques and skills taught in the class. CPR goes beyond just the "how to" and "why" by assisting client’s co-parenting skills through practice sessions and building on what they already know. This individualized program implements curriculum on healing and moving beyond the conflict of the past to focus on the children now.

3. Family Commitment session: This is the final 1 hour session where the entire family convenes in the office and parents deliver (a very well thought out and practiced response) to their children focusing on, not only the content of the children's concerns and experiences, but what they have learned in the class and the commitment they will make to their children.

The CPR Program is affordable:

The program is designed to be affordable! The CPR staff realizes the enormous costs associated with divorce including attorney's fees or GAL fees, lost work due to court time and court fees, let us not forget parking and the emotional cost of all of the above!) In its entirety is $600 per parent. That is only $120 per hour for a program that could drastically change the course of their lives. The fees are collected at the time of registration and non-refundable if parents choose not to finish the program.

We also strive to be flexible in the area of scheduling. Daytime and Evening hours are available and occasionally even weekends.

Through the experience of the CPR staff, we realized that ongoing support and accountability are necessary for the sustainability of the skills learned and practiced throughout the program. We there for developed what we term “Booster sessions”. These sessions are in addition to the structured program; therefore clients will pay for these separately at the time of the session.

We recommend that clients end their family commitment session by scheduling their follow up in 3 months. This will further solidify the need to implement and carry out the plans that were outlined in the final session. The entire family would come to the follow up meeting.

The CPR Program has proven success:

CPR is a very well thought out program that is delivered in a safe and comfortable environment. Clients have literally changed the course of the lives of their families by working through their old patterns and developing healthy styles of interaction and communication patterns that focus on the health and well being of their children.

You can read more on the CPR program by visiting www.coparentingwithrespect.com or call Jill Reiter LICSW directly to register today! 978-424-1170.

Tuesday, August 14, 2012

The Best Advice for Surviving Divorce: Remember the Serenity Prayer!

When divorcing clients get upset, I find it is most often due to things they cannot control, such as the behavior or choices of their ex-spouse.  The best counsel I have found in those situations is to encourage clients to work on the items they have control over, and to find ways to make peace with the things they cannot control.  This advice is essentially stolen from the serenity prayer:

The things you cannot change:

In a divorce case, you do not have control over what your spouse does.  You can ask the court to make orders that limit or direct certain behavior, but those orders are still only pieces of paper.  Violations of those orders will have consequences, but that process can still be time consuming and often frustrating for clients.  When that frustration takes hold, it is important to remember that you do not control what other people do, but you do control your reaction to what they do.

Courage to change the things you can:

When you want to react to the problems your ex is creating with their behavior, have the courage to respond appropriately and take the high road.  Too often frustration over bad behavior leads to more bad behavior between spouses.  Especially in cases with children this feedback cycle can be destructive.  Having the courage to be the better person, even when it is hurtful to your pride or frustrating, will ultimately help you find more peace with a bad situation because you are taking control over the things you can change: your own behavior.

And may you be granted the Wisdom to know the difference:

When you are unsure of how you should act or react in your divorce case, take advantage of the wisdom of others and the resources available to you.  Attorneys, counselors, and family support are all people that can help provide you with perspective on your actions and reactions.  It is understandable given the grief involved in ending a marriage that spouses will often react emotionally at first.  But taking the time to understand those emotions, and seeking objective assistance when needed, will provide you with the wisdom to separate out frustration over things you cannot control from decisions about how you should proceed with the things you can change.

You may not expect an attorney to advise you to pray when you're frustrated with your divorce case, but I have found that the Serenity Prayer extends beyond religion and if you prefer a secular version there are some similar words provided by Mother Goose:

For every ailment under the sun
There is a remedy, or there is none;
If there be one, try to find it;
If there be none, never mind it.

Thursday, August 2, 2012

Probate & Family Court Amends Procedures for Post-Hearing Motions

Standing Order 2-99 of the Massachusetts Probate and Family Court governs the proper procedures for submitting post-hearing Motions to the Probate and Family Court.  Per the Court's recent Press Release, amendments to this Standing Order, which took effect on July 2, 2012, clarify what types of motions may be submitted in these situations.

It had become common under the old version of the order for parties to file a Motion for Reconsideration or a Motion for Clarification after receiving an unfavorable Judgment or Order after a hearing in the Probate and Family Court.  The old rule made specific reference to these types of Motions.    However, there is no specific Massachusetts Domestic Relations Procedure Rule that allows for Motions for Reconsideration or Motions for Clarification specifically.  Under Massachusetts Domestics Relations Procedure Rule 60 a Motion for Relief from Judgment and Order may be brought, but only for very specific reasons.

The amendments to the Standing Order delete references to Motions for Reconsideration or Clarification and clarify that no new rights for relief are created by the Standing Order.  The Standing Order is only intended to set out the procedures by which relief pursuant to the Domestic Relations Procedure Rules may be sought.

View the changes to the Standing Order 2-99 highlighted here.

What would you change about the Child Support Guidelines?

The current Massachusetts Child Support Guidelines became effective on January 1, 2009 and another update may be on the way.  The Massachusetts Trial Court is currently seeking public comment and suggestions concerning potential changes to  the Massachusetts Child Support Guidelines. The Child Support Guidelines Task Force which will consider potential changes will accept written comments and brief oral statements (limited to three minutes) at five public forums to be held in September, 2012.  The dates and times of the public forums are available here.

Written comments can be submitted to the Child Support Guidelines Task Force at: The Administrative Office of the Trial Court; Suite 540, Two Center Plaza; Boston, MA 02108 or via email at: childsupport@jud.state.ma.us.

The deadline for submission of all comments is September 30, 2012.

To calculate child support under the current guidelines visit our Massachusetts Child Support Calculator here.

Thursday, July 26, 2012

When does Alimony End?

Until 2011, there was no formula enacted or endorsed by the Massachusetts Legislature or the Courts for the calculation of duration of alimony. However, on September 26, 2011, Governor Deval Patrick signed into law The Alimony Reform Act of 2011, which became effective on March 1, 2012. The act provides for multiple types of alimony, and for maximum amounts and duration of alimony.

The new law also limits the duration of General Term Alimony:

General Term Alimony Ends Upon:
  • Remarriage of the recipient;
  • Death of the recipient;
  • Death of the payor (though the court may order life insurance or reasonable security for payment of sums due to the recipient in the event of the payor's death during the alimony term);
  • Except when the court finds that deviation is warranted, upon the expiration of the duration formula calculated below;
  • Upon the cohabitation of the recipient spouse with another person for a continuous period of at least three months (may also result in suspension or reduction instead of termination; 
  • Upon the payor attaining the full retirement age when he or she is eligible for the old-age retirement benefit under the United States Old-Age, Disability, and Survivors Insurance Act, 42 U.S.C. 416.

When duration of marriage is 20 years or less, general term alimony shall terminate no later than a date certain in accordance with durational limits set forth below:
  • Marriage of 5 years or less, general term alimony shall be no greater than one-half the number of months of the marriage.
  • Marriage of 10 years or less, but more than 5 years, general term alimony shall be no greater than 60 per cent of the number of months of the marriage.
  • Marriage of 15 years or less, but more than 10 years, general term alimony shall be no greater than 70 per cent of the number of months of the marriage.
  • If the duration of marriage is 20 years or less, but more than 15 years, general term alimony shall be no greater than 80 per cent of the number of months of the marriage.
  • The court shall have discretion to order alimony for an indefinite length of time for marriages longer than 20 years.

The deviation factors which could result in a different amount or duration are:
  • Advanced age; chronic illness; or unusual health circumstances of either party;
  • Tax considerations applicable to the parties;
  • Whether the payor spouse is providing health insurance and the cost of heath insurance for the recipient spouse;
  • Whether the payor spouse has been ordered to secure life insurance for the benefit of the recipient spouse and the cost of such insurance;
  • Sources and amounts of unearned income, including capital gains, interest and dividends, annuity and investment income from assets that were not allocated in the parties divorce;
  • Significant premarital cohabitation that included economic partnership and/or marital separation of significant duration, each of which the court may consider in determining the length of the marriage;
  • A party's inability to provide for his or her own support by reason of physical or mental abuse by the payor;/li>
  • A party's inability to provide for his or her own support by reason of a party's deficiency's of property, maintenance or employment opportunity; and
  • Upon written findings, any other factor that the court deems relevant and material.

Even if a duration is set in an order, most of the time alimony is merged into the Divorce Agreement, which means that the amount and duration of alimony can be changed at a later date if either party files a Complaint for Modification and is able to demonstrate to the Court a significant material change in circumstances that warrants a change in the order.

Monday, July 23, 2012

What is Full Retirement Age? - New Online Calculator.

Pursuant to the Alimony Reform Act of 2011, there is a presumption that general term alimony ends upon the payor attaining Full Retirement Age, when he or she is eligible for the old-age retirement benefit under the United States Old-Age, Disability, and Survivors Insurance Act, 42 U.S.C. 416. The presumption can be rebutted but it requires clear and convincing evidence.

The Social Security Full Retirement Age may be different than your actual retirement date. Kelsey & Trask, P.C. has created an online calculator to help you determine your Full Retirement Age and retirement date by simply entering your birth date. Click here to try the Calculator.

The Calculator is based on the information available below which is taken directly from the Social Security website:

If you were born in 1944 or earlier, you are already eligible for your full Social Security benefit. If you were born from 1943 to 1960, the age at which full retirement benefits are payable increases gradually to age 67. The following chart lists the full retirement age by year of birth.

Age to receive full Social Security benefits:

Year of birth

Full retirement age

195566 and 2 months
195666 and 4 months
195766 and 6 months
195866 and 8 months
195966 and 10 months
1960 and later67

Note: People who were born on January 1 of any year should refer to the previous year

Wednesday, July 18, 2012

Is Visitation an Outdated term?

I once overheard an older relative ask one of my cousins if her husband was babysitting their children.  Since my cousin didn't have the children with her, the older relative was simply asking if the children were with their father.  But my cousin heard it differently.  She answered that he was their father and didn't "babysit", he "parented" their children.

For those who grew up at at time when Ward Cleaver was the typical father figure, only entering the picture to discipline the children or throw a ball with them, if a father is taking care of the children while mom is out that is unusual.  But the newest generation of parents grew up with the hands-on parenting of Dr. Huxtable and Danny Tanner.  To what extent TV is just reflecting the change in societal norms or affecting them is beyond the scope of this post.  But clearly there has been a shift regarding how involved the average father is in the everyday parenting responsibilities.

If the notion that a father could "babysit" his own children is outdated, can we say the same about the notion that a non-custodial parent "visits" his or her own children?

A recent Huffington Post headline regarding Katie Holmes and Tom Cruise raised my ire because of the purposely vague and inflammatory use of the term "full custody."  In my response, I addressed why that term can be so confusing and hurtful.  Coincidentally (or perhaps not), the Huffington Post has again written a headline that is insensitive to these issues: Suri Cruise Prepares To Visit Dad Tom Cruise For First Time Since Parents' Split.

Katie Holmes and Tom Cruise released a statement when they settled their divorce that made it clear (at least publicly) that they felt both parents should remain involved in their daughter, Suri's, life.  It's a shame that the media, specifically in this case The Huffington Post, believe it is still appropriate to characterize Dad's time as merely a visit.

Whether in litigation, mediation, or collaborative divorce cases, we encourage our clients to consider what their parenting schedule and parenting plan should be before they worry about the legal labels.   The goal of speaking about parenting in these terms is to refocus separated parents on what is best for their children, rather than who is "winning."  Recognizing the shared roles that parents have and the cooperation necessary to parent a child together even if from separate households is more important that what words we use to describe the arrangement.  

This approach takes the focus off of the language, whether it's the old language of "visitation" or the new language of "parenting time."   It's still important to remember, though, that certain terms can be offensive or hurtful, especially when it comes to a subject as sensitive as taking away someone's children.  Because the term "visiting parent" has come to be considered derogatory it's probably time to retire it.  Speaking about each parent as having parenting time respects them as equal parents even if they don't have equal time.  And respect is something every divorce case could use a little more of.

Friday, July 13, 2012

Besides an Attorney, what professionals might be involved in my Divorce case?

In a litigated divorce, you will often have the need to involve experts to clarify certain issues, and in some instances to testify.  These can include appraisers, brokers, financial valuation or vocational experts, mental health practitioners, GALs, and parent coordinators.  Whether or not a professional is needed to assist will depend on the issues in your case.  For example, if the parties can agree on the value of real estate than an appraiser would not be needed, but if they can't then a real estate appraiser will be needed to evaluate the value of the asset and potentially testify if the other party disagrees.

The Collaborative Divorce process typically includes a team approach to divorce which utilizes specialized professionals to assist the attorneys.  There are many instances where another professional can assist in moving a case forward and reduce the cost spent on attorney's time.  Here are just some of the types of other professionals that might be involved:

Coach:  Attorneys are not trained to deal with mental health issues, which can range from dealing with the emotional loss in a divorce to dealing with mental illness or personality disorders. A Divorce Coach is a mental health professional that participates in the Collaborative process. In some models the Divorce Coach is only called upon when needed, like a therapist. But the trend is towards involving the neutral Divorce Coach (or in some instances two Divorce Coaches, one for each party) in every step of the process. The Divorce Coach can help the parties deal with their individual emotions that stem from the loss of their marriage, the process of the divorce, and other underlying past issues. In addition, the Divorce Coach can help the parties form a parenting plan and discuss the child related issues in a more constructive manner than the custody/visitation legal context. For more information on the role of a Collaborative Coach read a previous Guest Post: What Does a Collaborative Law Coach do?

Child Specialist: Sometimes the process may also include a Child Specialist, i.e. a mental health professional involved in the case for the sole purpose of helping the parties understand what the children are going through as a result of the divorce, and how to help them. For more information on the role of a Child Specialist read a previous Guest Post: What does a Child Specialist do in a Collaborative Divorce?

Financial Planners:  In cases where the parties could use assistance gathering and understanding their finances and budgets, a financial planner (often a Certified Divorce Financial Analyst) can assist the parties with these issues as a neutral.  Oftentimes, they will also provide potential scenarios showing the different options for support orders or property division and how those different options will affect each party's net worth in the future.  This information and assistance can be very helpful in assisting parties in reaching settlements.

Experts: In a Collaborative case, an expert opinion may still be helpful, and any expert that might be hired in a litigation case could also be hired jointly in a Collaborative case to provide an expert opinion to both parties.  For example a real estate appraiser can be jointly hired by the parties in a collaborative case if they don't know or can't agree on the value of an real property asset.  These experts could include appraisers, bankruptcy attorneys, business valuation experts, etc.

Although there is a cost involved in using any additional professional to assist in moving your divorce case forward, their expertise is cases where they are necessary usually saves time and money that would have been wasted otherwise.

Monday, July 9, 2012

What can we learn from Katie Holmes divorce filing against Tom Cruise?

Tom Cruise & Katie Holmes WHCAD If you live in a cave, then maybe you haven't heard that TomKat is no more.  As reported by TMZ, Katie Holmes has filed for divorce from Tom Cruise and according to the pleadings she is seeking sole legal and physical custody of their daughter Suri.

What I find interesting is not the fact that another celebrity couple has called it quits.  Celebrities getting divorced is hardly even surprising news anymore.  Okay, it is a little interesting that this would be Tom's third divorce and, according to the Huffington Post, all three occurred when his wives turned 33.

But what I find most interesting is how the media has been reporting the divorce filings and what it says about how we perceive custody battles. Specifically the Huffington Post had the following headline on an article about the divorce filings: Suri Cruise Custody: Katie Holmes Reportedly Seeks Full Custody In Divorce From Tom Cruise

When I first read this I immediately cringed, because I am so often telling clients that the words "full custody" are meaningless.  What is "full custody"?  Is it sole legal and physical custody, or just sole physical custody?  Does it mean Katie doesn't want Tom to ever see their daughter?  Does it mean Katie thinks she is the only parent to Suri?  Probably not, but that's what asking for "full custody" can sound like to the person who is being asked to give up custody of their child.

The word "custody" is a loaded term already, and the term "full custody" is even worse.  The terms "legal custody" and "physical custody" have legal meaning but they don't actually tell you how to co-parent a child as separated parents. Parents who are separated or are separating should be considering what is in the best interest of their child.  Except in very unusual circumstances (when a parent is destructive and dangerous), a child always benefits from having both parents involved in their life.  In addition, in most cases both parents will feel strongly that they should stay involved in their child's life.

Telling the other parent that you want "full custody" is akin to saying "I'm a parent and you're not."  Is that what Katie Holmes meant to do?  Probably not, despite the way it was being reported by the media.  In fact, the legal document for filing divorce requires that a request be made on custody.  Many times the legal pleadings are restrictive on what you can ask for depending on how you plan to proceed with the case and this may have been the best way for Katie's attorneys to complete the form even if "full custody" was not their intent.  Because Tom likely has a team of lawyers he probably already knew the difference between the legal document and the practical reality.

Unfortunately, though, many divorcing parents begin the divorce process with the misunderstanding that they should seek "full custody" or that their spouse is trying to do so.  Imagine someone/anyone trying to take your child away from you and you can begin to understand the amount of hurt that causes parents.  These parents are already hurting because of the loss of their marriage, and now add to that the perception that their spouse is trying to take away their children. That is a recipe for disaster, and it is not hard to figure out where the term "custody battle" comes from.

But it doesn't have to be that way.

There are two movements towards greater civility in the Divorce process which overlap in this instance: Collaborative Divorce, and Shared Parenting.

Collaborative Law is a form of alternative dispute resolution where both parties in a dispute have their own attorney, but those attorneys agree not to go to Court. The goal of the Collaborative process is to reach agreements through negotiation and to avoid the expensive and emotional experience of Court. In the context of family law, Collaborative Law can be used to resolve disputes involving divorce, child custody and support, alimony, division of assets, paternity, and actions for modification. The process can also include other professionals such as financial planners and mental health professionals using a team approach to help negotiate and settle disputes.

Shared Parenting doesn't necessarily mean "equal parenting" but rather a recognition that both parents will be involved (in most cases) in the child's life.  The goal of speaking about parenting in these terms as opposed to adversarial terms is in recognizing the shared roles that parents have and the cooperation necessary to parent a child together even if from separate households.  That relationship is defined through a parenting plan, that may still use the legal terms "custody" but is focused primarily on the relationship and only uses the legal terms to ensure understanding by the courts.

A Parenting Plan is a comprehensive agreement which sets out both the time that children will spend with each parent as well as the rights and obligations of each parent to the children and the other parent during their parenting time. It can include a holiday visitation schedule, pick-up and drop-off locations, and even agreements relating to what will happen if one of the children becomes ill. Parenting Plans can be made specific in instances where it is necessary to prevent future conflict, and they can be made flexible so that you and the other parent can make agreements outside of the parenting plan in unforeseen circumstances.

As we learn more and more about the destructive effect that custody battles have on the children, shared parenting and collaborative divorce will become more and more popular.

Even between Tom and Katie, despite the supposed request for "full custody" in the initial filing, they saw a way through the 'battle" to quickly reach an agreement and release a statement that they "are committed to working together as parents to accomplishing what is in our daughter Suri's best interests" (as reported by CNN).  In a divorce, that's the only commitment that still matters.
Read more about Collaborative Divorce here.

Read more about Parenting Plans here or try out our Parenting Plan Worksheet.

Thursday, June 21, 2012

I've hired a Collaborative Attorney, how do I convince my spouse to hire a Collaborative Attorney too.

Collaborative Law has many advantages over litigation. It is usually far less expensive than going to trial.  When you go to court, much of your attorney's time will be spent on court strategy or on waiting to be heard in Court. Collaborative Law can help you avoid the backlog in the courts, allowing for a more expedient resolution.

In addition to these practical concerns, though, Collaborative Law offers something that the Courts do not offer: the chance to resolve your case on your terms. If you are unable to settle your case in Court a Judge, essentially a stranger who will only meet you for a very limited period of time, will make major decisions about your life. Collaborative Law is your opportunity to make these decisions together. After all, who knows what is better for you and your family than you do.

Instead of trying to convince your spouse of these advantages, we suggest that you simply request that your spouse interview an attorney who is trained in Collaborative law.  This will help them understand all of their options whether or not they choose to proceed with that attorney or the Collaborative process.  Let your spouse's attorney explain the benefits of the process.  A list of attorneys who have been trained in Collaborative Law in Massachusetts is available on the MCLC website.

Alternatively, if your spouse has shown reluctance to speak to an attorney first, you could also suggest that they speak to a Collaborative Coach.  A coach can also explain the Collaborative process and may be less intimidating than speaking to an attorney.  A list of coaches who have been trained in Collaborative Law in Massachusetts is available on the MCLC website as well.

In addition it might be helpful to tell your spouse where they can read more about Collaborative law online.  Click here to read more about the advantages of Collaborative Law or visit the MCLC website.

Finally, the MCLC Metro West Practice Group has created a brochure to help people considering the Collaborative process.  Contact Attorney Kelsey to obtain copies of the MCLC brochure.

Related Posts Plugin for WordPress, Blogger...