Wednesday, February 29, 2012

Divorcing an Incapacitated Spouse: How a Guardianship and Conservatorship Can Help

It can be necessary in some divorce proceedings to include a guardian and conservator if one or both of the spouses are unable to manage their personal affairs and property because of a clinically diagnosed impairment. This goes beyond the common complaint of divorcing couples, "My husband/wife is terrible with money!"

It goes to whether a spouse has the actual ability to understand the management of his or her personal affairs and finances. When one or both spouses are lacking this level of understanding, a judge in a divorce case will want to see that neither spouse is being taken advantage of in the divorce process, and a guardian and conservator is one way to install a safeguard.

Because both guardians and conservators have authority over the incapacitated spouse, subject to any limitations as set forth by the court, both can (and both are required, assuming that there is marital property) sign a divorce agreement binding the individual.

If a guardian and conservator have not already been appointed prior to the commencement of divorce proceedings, but it would be appropriate to do so, either individual, or someone not involved in the divorce case, could begin a petition for a guardianship and conservatorship over the incapacitated individual. If there is a guardianship and conservatorship in existence, the divorce case can proceed provided that the guardian and conservator are not the spouse, for obvious conflict of interest reasons. In that instance, someone else would need to be named guardian and conservator before the divorce would proceed.

Should you have any questions about guardianship or conservatorshipcontact Attorney Jonathan R. Eaton, or call 508.655.5980 to schedule an initial consultation.

Divorce and Renewal Spa BootCamp Weekend for Women

Once in a while we post events on this blog that are organized by other professionals whom we respect. 

Below you will find information on a spa weekend for divorcing women, organized by Family Law Attorney Paula H. Noe, and Psychotherapist and Divorce Coach Betsy Ross. It sounds interesting but it leaves me wondering if I can successfully convince my wife that I need to organize a Golf Weekend for Divorcing Men.

Even if that never happens, there certainly is some value to finding alternative ways to help both men and women find healthy ways to deal with the stress of divorce and learn how best to manage that stress in the future.  To that end here is the invitation forwarded by Betsy Ross for their program:

Norwich Inn and Spa
Norwich, CT
See DivorceAndRenewal.com

The weekend will provide an opportunity for women who are


to spend a weekend of renewing themselves, jumpstarting the rest of their lives and creating a community. We have brought a team of highly skilled divorce professionals to help us teach skill and tactics in 2 days of stimulating and creative workshops.

Paula and I will be co-teaching and co-facilitating many of these workhops, including:

  • "Communication Tools and Tips: How to Get What You Want With Words!" 
  • "How to Talk Divorce with Your Children, Your Attorney, Your Community" 
  • "Artful and Successful Negotiation: Can I Win It?" 
  • "Anger-Weapon or Tool: How can I use it?"
  • "Preserving my family" (includes: "Who gets to keep our friends?") 
  • "Stress and String Beans: Time Management and Organizational Skills" 
  • "How do I re-launch and re-enter: personal marketing and relationship skills" (includes "Common Obstacles to Close Relationships") 

and even -

  • "Online Dating: How do I?", (includes: "The Art of Finding Someone New") 
  • "Allowing Happiness" 

and we are lucky enough to have put together a panel of divorce professionals who will speak on our lunch panel and then participate in in-depth workshops:

  • "Financial Tips and Traps for the Unmarried Woman", facilitated by Susan Miller of Aurora Financial, Wellesley, MA. 
  • "Increasing Your Parenting IQ: Co-parenting before, during and after divorce", facilitated by Judith Farris Bowman, Esquire, of Bowman, Moos and Elder, Cambridge, MA. 
  • "War Stories From the Bench: A Divorce Judge's View of Good and Bad", facilitated by Chouteau Merrill Levine, Retired Probate and Family Court Judge, Suffolk County, MA, currently of Levine Dispute Resolution of Westwood and Northhampton, MA. 

So please help us get our message out - do you know anyone who would benefit?

Click here to see the brochure - Divorce_and_Renewal_Better_Q.pdf

Friday, February 17, 2012

What County do I File my Divorce in?

Map Courtesy of Digital-Topo-Maps.com 

In Massachusetts, the county that you file your Joint Petition for Divorce or your Complaint for Divorce in is controlled by M.G.L. c. 208 s 6.

Assuming that Massachusetts has jurisdiction to hear your case (which we explain in this previous post), 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.

To figure out how that standard applies in your case, answer these questions to figure out where you should file:

Question 1:  Do you or your spouse still live in the county where you last lived together?  If Yes, then file in that county.  If no, then continue to Question 2.

Question 2:  Do you both live in Massachusetts?  If Yes, then you can file in either the county where you live, or the county where your spouse lives.  If no, then continue to Question 3.

Question 3:  Does one of you live in Massachusetts?  If Yes, then you can file in the county in Massachusetts where one of you lives.  If No, then you should file in the county that you last lived together in Massachusetts.

If you never lived together in Massachusetts and neither of you lives in Massachusetts now, then review our previous post on jurisdiction because there is a good chance, you cannot file in Massachusetts.

There are Two Exceptions to the above described rules:

Exception 1:  In the event of hardship or inconvenience to either party, the court having jurisdiction may transfer such action for hearing to a court in a county in which such party resides.

Exception 2:  In cases where this is a potential conflict of interest, the court having jurisdiction may transfer the action to another county.  For example, if a court employee is getting divorced it would not be fair to them or their spouse to have the case heard in the court where the employee works.

Wednesday, February 15, 2012

Signs of a Cheating Spouse Infographic

In the wake of Valentine's Day perhaps you're wondering if you're the only one that your significant other bought a gift for. To help you answer that question a network of Private Investigators has put together an Infographic based on a survey of their members. Please don't take it too seriously:

Signs of a Cheating Spouse Infographic

Courtesy of: PInow.com

Kelsey & Trask, P.C. provides this graphic for informational purposes only. We do not endorse nor claim endorsement from the source site or organization. Kelsey & Trask, P.C. is not responsible for any information contained therein, unless indicated specifically on that site.

Tuesday, February 14, 2012

Best Valentine's Day Gift: A Court Ordered Trip to Red Lobster

NBC Miami is reporting that a Judge in Florida has ordered a husband to take his wife on a date.  The Judge ruled that a fight between the couple over the man forgetting his wife's birthday did not result in serious enough violence to warrant further court action.  Although, the Judge indicated he would not normally treat domestic violence so light-heartedly he categorized the incident in this case as "very very minor".  The wife can be heard in the full video indicating that she wants her husband to come home.

After inquiring of the wife what she likes to do and where she likes to eat, he ordered the husband to buy flowers, a card, get dressed up and take his wife to Red Lobster and bowling afterwards.  He was not ordered to let her win.  The Huffington Post's coverage of the order is available below:

Monday, February 13, 2012

What Should I Expect at My Divorce Pre-Trial Conference?

Many of our divorce clients wonder what will happen at the Pre-Trial Conference. Most divorce cases actually settle at or shortly after their Pre-Trial Conference, so it is important to understand what the process actually entails before it begins.

Prior to your court date for the Pre-Trial Conference, both parties and their respective attorneys, if any, will be required to meet in person at what is called a "four-way conference." The purpose of this is to encourage discussion about possible settlement prior to the Pre-Trial Conference, so that the process of resolving issues might have begun before the case gets in front of a judge.

There is no testimony at a Pre-Trial Conference. If represented by an attorney, parties will not generally be asked to speak, although some judges have been known to ask the parties a few questions directly.

Each party will be required to file with the court a memorandum summarizing the procedural history and positions on disputed issues. Different judges have different notices for a Pre-Trial Conference laying out the structure for their memorandums. Usually, it is a six- to ten-page document.

Both sides will have an oral argument in front of a judge, who will give his or her feedback on the disputed issues. The judge's response is usually framed as a range in which he or she is inclined to rule should each disputed issue be brought to trial.  Since we have an individual calendar system, unless the judge that hears the pre-trial retires or changes courts, it will be the same judge at trial.  This is an opportunity, therefore, to get feedback directly from the person who decide your case if you can't settle.

For example, if the parties cannot agree as to whether an inheritance to the husband shall be divided along with everything else, the husband and wife (or their respective attorneys) will each argue their respective positions. After reading the Pre-Trial Memorandum and listening to each side present their cases during oral argument, the judge will, during that hearing, provide feedback for how he or she would be inclined to rule should the facts as presented by the husband be proved at trial, and the same for the facts as presented by the wife. Once the parties hear what the range of results will be from the judge there is a more limited scope of options for settlement. Expectations are generally tempered accordingly, and, usually, negotiations pick up speed. Often, cases settle at or shortly after the Pre-Trial for this reason.

Should you have any questions about divorce, contact Attorney Jonathan R. Eaton, or call 508.655.5980 to schedule a one hour initial consultation.

Thursday, February 9, 2012

It's a Mad, Mad World: Uncomfortable Praise for the Evolution of Divorce Law in the United States

Mad Men Season 3 Episode Photos
Mad Men Season 3 Episode Photos Photo Gallery
Don Draper (Jon Hamm) in Episode 13
One of television's most popular shows, Mad Men (season five premieres on March 25 on AMC), is set in the early to mid 1960s New York, and features the troubled marriage and eventual divorce of two of its main characters. The show has earned praise for its efforts to remain historically accurate, and as such, gives divorce practitioners a chance to view the dissolution of a marriage as if it were in a time capsule.

The show's main character, Don Draper, is a professionally successful advertising executive with a lifestyle which includes a serious drinking problem and many extra-marital affairs. His wife, Betty, had been a model, but stopped working to care for their children after their oldest was born. After discovering one of Don's affairs, and finding out that he was actually living under someone else's name, and that he had previously been divorced in California, she went to her father's estate attorney to ask about her options regarding a divorce. The following is the dialogue between Betty and the attorney, fictionally set in 1963 (from the season finale of Season 3):

Attorney: "What do you want to do? Do you want a divorce? In New York State you need to prove adultery. Can you?"
Betty: "Maybe."
Attorney: "I mean prove it in a court of law. That's hard to do, unless he wants out, but you're not going to get anything. You won't even be able to buy [your brother] out of [your father's] house, so you'll have to sell it. And, he can take the children. That's my legal advice. You want the rest of it? Are you afraid of him?"
Betty: "No."
Attorney: "Is he a good provider?"
Betty: "Well, he is but that's not the point. It's a lie so big, Milton. I feel like I've been in some dream since I found out. Just saying it out loud to you is ... the first time I'm realizing it's true."
Attorney: "You have three small children together. At least, go home. Give it a try. That's what I'd tell my own daughter."

At the time of this fictional dialogue, No-Fault divorce had not yet become available in most states. New York became the last state to allow for No-Fault divorce in 2010. Massachusetts, by contrast, has had No-Fault divorce for over thirty years.

No-Fault divorce makes proving a wrong, such as adultery, unnecessary in a divorce proceeding. Since No-Fault divorce became common, divorce cases have shifted their focus from what a husband or wife has done wrong to accepting that individuals should have the ability to exit a marriage if they feel that it has irretrievably broken down, and figuring out how to sever some of the ties that bind a couple.

Other than the procedural requirement that something fault-based be proven in court, the two points that the attorney makes that are diametrically opposed to modern divorce law is the idea that Betty would not get anything, and that Don would get the kids. Modern divorce law is designed to (it doesn't always work out this way, but it is designed to) minimize the transition for any children in the midst of a divorce. Judges like to keep children in as stable position as possible. The idea of having three young children taken away from their stay-at-home mother to reside primarily with their father and his long hours and drinking problem, without much evidence that the children would be better off with him than with their mother, is unlikely in a modern divorce. Further, the revolution (and evolution) of alimony, property division, and child support within the context of a modern divorce would make it very unlikely that Betty would be left without many assets or support from Don to continue their upper middle class lifestyle.

Lastly, and this might be more the issue of a Hollywood script than a historically accurate portrayal of how attorneys spoke to potential clients about divorce fifty years ago, it is inappropriate for an attorney to try and convince a potential client to either obtain or refrain from obtaining a divorce. That is a personal decision that should be made only by the individual.

What is considered "fair" is fluid. Views on politics, ethics, gender relations, and many more issues vary over the course of time, and vary among different cultures within the same time. From this divorce practitioner's viewpoint, the modern divorce is generally "fair" given what that term carries in early twenty-first century Massachusetts, at least far more than what it was fifty years ago.

Tuesday, February 7, 2012

Implications for Firearms Owners Served with 209A Restraining Orders

Immediately upon being served with a 209A restraining order, M.G.L. c. 209A § 3B requires that the subject of the order surrender their License to Carry Firearms and/or Firearms Identification Card, all “firearms, rifles, shotguns, machine guns and ammunition which he then controls, owns or possesses.” Law enforcement officers, upon service of the restraining order, shall immediately confiscate all licenses, firearms and ammunition. Note that the requirement to surrender all firearms and licenses must be made immediately upon service of the order, even if you intend to oppose the issuance of the order at a subsequent hearing.

What happens to the seized firearms?

Weapons seized as a result of a restraining order by the police may only be thereafter transferred to a licensed dealer by the police department. The police department may not release the firearms back to you (even should the order be ultimately vacated); nor may they release the firearms to any licensed individual – only a federally-licensed firearm dealer. M.G.L. c. 209A § 3B is very specific as to who the firearms may be transferred to after seizure. The restraining order statute requires that only a licensed dealer may take custody of the firearms, and act as a transfer agent when your carry rights have been restored.

This means that even if the order is vacated after a hearing, you must first request that the Chief of Police or other licensing authority reinstate your license to carry firearms or firearms identification card. Once your license has been reinstated, you must then determine if the firearms are in the custody of the police, or if they have been transferred to a licensed dealer. If the firearms are still in the custody of the police, they must first be released to a licensed dealer, who may then transfer them back to the license holder (after they perform the appropriate check to ensure that you are properly licensed).

What if your employment requires the use of a firearm (such as a police officer)?

If the restraining order was initially obtained without a hearing, and you are required to carry or possess a firearm as a condition of your employment, you may file an affidavit demonstrating such an employment requirement, and request an expedited hearing on the restraining order. The Court will schedule a hearing, but only on the issue of the surrender and suspension of firearms pursuant to M.G.L. c. 209A.

How long does a firearms license stay suspended after the initial service of a restraining order?

If the restraining order is extended at the 10-day hearing, or at anytime thereafter following an extension or modification hearing, M.G.L. c. 209A § 3C requires that the individual’s license to carry firearms remains suspended (and any firearms may not be returned or possessed) for as long as the restraining order remains in place. As such, any firearms or firearms license may not be returned until the 209A order is vacated.

However, although an individual who was the subject of the now-vacated 209A restraining order may petition the Chief of Police to reinstate of a license to carry firearms, the Police Chief is not under obligation to do so. In Howard v. Chief of Police of Wakefield et al. (59 Mass. App. Ct. 901, 2003) the Appeals Court upheld the Police Chief’s determination that a 209A Abuse Prevention Order issued by a Judge, after a hearing, represents a finding that the individual poses a threat of violence, and that the expiration of the 209A does not erase the fact that the individual has a history of being found post a threat of violence. Since the chief has broad discretion to determine the suitability of an individual to possess a firearms license, the Chief or other licensing authority may consider this information as relevant to his determination as to reinstate the license.

Being the subject of a 209A Restraining Order may cause you to lose your firearms rights for life, and has significant implications as to your property rights, as well. Some licensing authorities may be willing to extend licenses to individuals who are no longer the subject of an abuse prevention order, but it is at the discretion of the licensing officer. Additionally, with even a small firearms collection the value of the confiscated weapons could be thousands of dollars, and larger collections could be valued at hundreds of thousands of dollars. The legal requirement to surrender such property immediately upon the issuance of a restraining order could have significant financial consequences. It is important that, if you are served with a restraining order, you immediately contact an attorney to both protect your rights, your property, and ensure compliance with the law.

For more information about firearms licensing laws, applications, renewals and appeals visit our firearms website.

Monday, February 6, 2012

A Mental Health Public Service Announcement

A lot of the work that we do is representing individuals as they transition through difficult periods of their lives. Whether in the context of a guardianship, bankruptcy, divorce, child support, or child custody proceeding, the process can often be emotionally taxing.

While we do our best to remain aware of therapeutic jurisprudence, our court system often falls short of the needs of individuals struggling to deal with the emotional toll of the process. We often work with individuals who are struggling to cope with the process, and encourage them to seek the support of friends, relatives, and/or a therapist. When it comes to your well-being, leaning on the support of others can assist in navigating a trying legal process. In short, don't be afraid to ask for help with your emotional needs while your attorney helps with your legal needs.

Friday, February 3, 2012

Post-Divorce Problems: Who has to pay for College?

In Massachusetts, the court has the authority to order divorced parents to contribute something to their children’s college education expenses.  Usually the court won’t deal with this at trial unless the children are almost of age to attend college, but most agreements will address the issue in some way.

When it comes to the payment of college education expenses, the specific language that your Separation Agreement contains is very important. Many agreements require parents to contribute in proportion to their incomes and abilities at the time the college bill becomes due. However, if your agreement states that you are to share equally, then that could require you to contribute one half of the cost. How educational costs are defined by the agreement could differ greatly and the specific language of your Separation Agreement will be key to determining exactly what you are required to pay. And if you are required to pay a specific amount and you don't you could be liable for Contempt sanctions.

If the issue of payment of college is modifiable in your agreement or defined vaguely or not at all, then when it comes time to determine how the college education expenses are going to be split, you should try to reach agreement with your ex-spouse on this issue.  If you are able to agree to a change with your ex (either directly, through mediation, or through collaborative negotiation) then you can file an agreement with your Complaint and request an uncontested hearing approving the division.

If your agreement is vague and you can’t agree, then you must file a Complaint for Modification to have the court determine contributions.  If you have a specific agreement, but it is modifiable and you do not think you can afford to contribute an equal share for college, then you may want to seek modification of this clause by filing a Complaint for Modification.

If this issue is put before a Judge, many Judges are reluctant to order parents to contribute more than one third or one half of the cost of a state school. Of course, this also depends on the financial abilities of the parents.

Often child support and/or alimony orders may also be changed by a Judge if college education expenses are going to be added to the total support obligation.

Click here to learn more about filing a Complaint for Modification.

Thursday, February 2, 2012

Probate and Family Court Funding Crisis in Massachusetts

The Massachusetts Bar Association posted the below video to raise awareness about the problems of not properly funding the judicial branch in Massachusetts.  The Probate and Family Courts specifically have been hard hit, and were recently forced to reduce their hours.   As discussed in the video, any law-abiding citizen can end up in the Probate & Family Courts for necessary family matters such as probating a family member's estate or obtaining a guardianship to protect an elderly relative.  When these cases can't be heard in a timely manner, the system is failing the public.  As the saying goes: justice delayed is justice denied.

"As the House of Representatives and then the Senate begin their budget debates in April and May respectively, you, as a member of the public or legal community, can make a difference, by reaching out to your state senators and representatives to reiterate the importance ensuring a full funded judicial system. Visit http://www.massbar.org/courtfunding to identify your state representatives and senators and join the MBA in advocating for proper funding of the state's third branch of government -- the Judiciary."
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