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.

Tuesday, June 19, 2012

When does a parent qualify for Retroactive Child Support?

In some instances a parent is not or has not been paying the amount of child support that they should be paying, and these circumstances can lead to different results depending on the history of the case.

The first question that must be answered is whether or not there is a current order in place.

Retroactive Support in Cases without Current Child Support Orders:

If child support has never before been ordered, then in Massachusetts whether retroactive support will be due is dependent on whether or not the child in question was born out of wedlock.

In Massachusetts divorce cases there is a presumption that spouses have been supporting each other and their children and therefore child support can only be requested in a divorce case after the date of service of the Complaint for Divorce unless the parties voluntarily agree otherwise.  For example, sometimes parties in a Mediation or Collaborative negotiation will agree to a voluntary temporary child support during the negotiation but this agreement is not enforceable in court.

In cases in Massachusetts where a child was born out of wedlock (usually referred to as Paternity cases), retroactive child support may be owed.  If a parent has not been supporting their child and not living with the child, they may owe support all the way back to the child's birth.  If a case isn't filed until the child is a teenager, this can be a complicated calculation requiring years of pay information, and can result in significant child support arrears.

Retroactive Support in Cases with Current Child Support Orders:

If child support has been ordered, then support may be due back to the date of the order if the parent has not been making the required payments.

A Complaint for Contempt is the action by which you can request that the Court make a finding and issue sanctions for failure of one party to meet the obligations and requirements of a Court Order or Judgment. To succeed on a Complaint for Contempt you must prove two things: first you must prove that there has been a "clear and unambiguous" order or judgment and second you must prove that the other party "knowingly violated" the order.  In addition, in order to get sanctions for failure to make payments, you may also have to prove that the Defendant had the ability to pay.

If you can prove that support hasn't been paid as required by the order then support payments will be owed retroactively to the date of the court order, pursuant to that order.  Interest and sanctions may also be applied.

If you are seeking to have a payment different than a previous child support order, then in Massachusetts you must file a Complaint for Modification.

A Complaint for Modification is the action by which you can request that the Court make a change to the past Court Judgments. To succeed on a Complaint for Modification you must prove two things: first you must prove that there has been a "significant material change in circumstances;" and second you must prove that the change in circumstances warrants a change in the Order.

Although an event may occur which warrants a change in child support, for example the payor has increased their pay significantly, any support change will not be effective on the date that the event occurred.  In Massachusetts, changes in child support can only be retroactive to the date of service of the Complaint for Modification.  Therefore, if you suspect that a change is necessary the sooner you file and serve the Complaint for Modification, the better.

In addition, many people will file a Motion for Temporary Orders on the new Complaint for Modification. The Courts typically did not allow a change prior to settlement or a trial unless there was an emergency that warranted a change. If you request an immediate change via Motion you should also file an Affidavit of Emergency to inform the Court why an immediate change is necessary.

PRACTICE TIP - However, at a recent seminar some Massachusetts Judges indicated that they are more willing to rule on Motions for Temporary Orders on Complaints for Modification than they have been in the past.  This is because the Court Calendars have become significantly backed up and Judges recognize that delaying a change until trial could result in large retroactive orders.  The injustice of these large retroactive orders could convince a Judge that a temporary change is necessary and even if denied, you can point later to the fact that you tried to avoid the retroactivity issue.

Wednesday, June 13, 2012

What happens after my Divorce Agreement is approved by a Judge?

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 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 90 days after the divorce hearing date.

Therefore, for 90 - 120 days after your agreement is approved you are still officially married.  During that "nisi" period you cannot remarry, and your tax and health insurance status will be as if you are married.  Once the "nisi" period passes you are officially divorced.

During and after the "nisi" period your Agreement will remain in effect unless the Judge or the Agreement directs otherwise.  This means that usually immediately after your hearing you start acting as required by the Agreement.  If you owned any joint property, the Agreement will likely require you to complete certain paperwork during this time period, such as transferring car titles, or signing deeds. In addition, if you agreed to the transfer of any retirement account you should complete any necessary QDROs as soon as possible and present them to the court for approval and then the retirement account plan administrators for implementation.

Once these transfers are complete there usually isn't any further work for your attorneys, but there may still be some to-dos for you to successfully complete your divorce. You should review your Separation Agreement to ensure that you are currently in compliance with and continue to comply with all of your obligations.

To assist you in completing these processes we have provided you with a Closing Checklist below:

☐      Pay final bill for professional services & fees to your attorney.

☐      Retrieve original files from your attorney.

☐      Store file in secure, safe location.

☐      Update Post Office with any new information (change of address or name).

☐      Update Registry of Motor Vehicles with any new information (change of address or name), and file updated titles for any motor vehicle transfers required by Separation Agreement.

☐      Close any joint accounts as required by Separation Agreement.

☐      Notify your accountant and/or financial planner of any account changes due to your divorce, and the change in your marital status.

☐      Notify your employer human resources department of change in marital status as of the Judgment of Divorce absolute date.

☐      Except as required by Separation Agreement, update beneficiary designations and authorized users on any accounts (bank, retirement, life insurance, etc.).

☐      Schedule Consult for updating Estate Plan (previous estate plan likely voided by divorce).

☐      Update all online account passwords (bank, credit card, loan, e-mail, social networking, etc.).

☐      If Property Transfer: File Quitclaim Deed with proper Registry, and obtain time-stamped copy for evidence of recording.

☐      If Name Change: Obtain Certified Copy of Judgment of Divorce Absolute (after 90 days) directly from Court.

☐      If Name Change: Provide Certified Divorce Judgment to Social Security Administration with Form SS-5 .

Other Resources:

Modification - In the event of a change in circumstances you may be entitled to a Modification of your Agreement, for more information visit: www.criticalmassdivorce.com/modification

Contempt – If the other party fails to meet an obligation required by the Agreement you may be entitled to Contempt sanctions, for more info visit: www.criticalmassdivorce.com/contempt

Monday, June 11, 2012

What is a QDRO?

QDRO stands for Qualified Domestic Relations Order, and they are the vehicle by which retirement assets are transferred post-divorce.

Retirement accounts are not typically transferable between anyone, even spouses, without tax consequences. In order to transfer funds held in a retirement account the owner must first remove them from the retirement account, which, if allowed by the rules of the plan, will result in taxable income and, prior to retirement age, tax penalties.

However, in the event of a divorce the IRS allows for a one-time transfer by Qualified Domestic Relations Order (also known as a "QDRO") to avoid these taxes and penalties. A transfer of retirement account between former spouses pursuant to a QDRO results in a new retirement account held in the name of the other spouse (or "alternate payee") in the amounts and per the terms specified in the QDRO. The retirement income paid from said account will be taxable income upon receipt just as it would have been to the original owner, but the transfer between spouses is not taxed at the time of the transfer.

Friday, June 8, 2012

Getting some perspective while shaving my head!

The posts on this blog usually relate to updates in divorce law and advice on how to experience a better and less traumatic divorce.  Divorce is considered to be the second most traumatic event a person can experience, and we find that helping our clients get through that experience is fulfilling work.

But last weekend, I participated in an event where many of the people had experienced the most traumatic type of life event: the loss of a family member to cancer.   At the One Mission Kid's Cancer Buzz-Off, 450 participants and their families gathered to support the families of kid's with cancer, and the event was an amazing success that I was honored to be a part of it.

While I am lucky to have two healthy daughters, there was a time in my oldest daughter's life where she had to spend one month in the hospital.  It was the hardest thing my wife and I have ever experienced, and I can't imagine how hard it is for families with children in cancer treatment which can last, not just months, but years.

So when I heard about the Buzz-Off event I decided I could put my long hair to good purpose and through the generosity of more than forty donors, I was able to raise more than $1,500 for the event.  Overall the 450 participants raised $560,000.

This past Saturday, June 3, 2012, I attended the Buzz-Off with my family to fulfill my promise to those donors of shaving my head.

The Buzz-Off was held in the club seat section at Gillette stadium and was very well organized.  There was face-painting and balloon animals for the children and the head shaving kicked-off around 9:30 A.M. with Rob Gronkowski starting things off.  After Rob, there were numerous interviews with the families that were shaving their heads together.  While I waited for my buzzing at 11:00, I listened to the reasons that so many others had been inspired to raise money as well.

One story in particular stuck with me, where a father described how he and his boys were shaving all of their heads in memory of their 18 month old child who had died of cancer.  All of us were there to help families just like his, and his strength in memory of his family's sacrifice was truly moving.

So if you see me in the next few weeks with my buzzed hair, consider it a reminder of the real sacrifice that many families experience and remember that whatever you may be going through, a little perspective never hurts.  I hope by sharing this experience with you that you will find it as inspiring as I did.

I want to thank everyone who donated and supported my involvement in this event.  If you want to learn more click the below links for:

More information about One Mission's Buzz-Off program;

Pictures of the Buzz-Off 2012;

Registration for the Buzz-Off 2013; or

You can still DONATE for the 2012 event until September.


Seminar: Divorce and Trust Assets

We are pleased to announce that Attorney Kelsey will be speaking in an upcoming Strafford live phone/web seminar entitled:

Divorce and Trust Assets: Support and Property Settlement Considerations

Tuesday, June 19, 1:00pm-2:30pm EDT.

Trusts present unique challenges when classifying and dividing marital assets in a divorce. Counsel must discover whether one of the parties to the marriage has an interest in a trust, the trust location, and the type of interest.

The value of the trust and history of distribution to one of the parties can be relevant in determining support and asset division. Counsel should identify the type of trust, methods for valuing the parties' interest, and ways to reach or protect the beneficiary’s assets from a family law perspective.

My fellow panelists and I will prepare family law practitioners with best practices to represent the interests of parties in discovering trusts and classifying a party’s interest in the trust as a marital asset. The panel will review valuation methods and ways to attack the trust or protect the beneficiary’s interest in the trust.

We will offer our perspectives and guidance on these and other critical questions:

• What type of trusts should family law practitioners be aware of and what are the best ways to discover the type of interest a party has in a trust?

• What methods can be used to value a party's interest in a trust?

• How can a party's interest in the trust be reached or protected for family law purposes?

After our presentations, we will engage in a live question and answer session with participants — so we can answer your questions about these important issues directly.

I hope you'll join us.

For more information or to register at half price or call 1-800-926-7926 ext. 10 for more information 

Tuesday, June 5, 2012

Seminar: What Happens to the Marital Home During Divorce?

The Divorce Center Offers Seminar:

What Happens to the Marital Home During Divorce

The Divorce Center, a non-profit organization of professionals from multiple disciplines providing support and education for people going through separation or divorce, is offering a seminar entitled:

“What Happens to the Marital Home During Divorce” on June 7, 2012 from 6:30 to 8:30 p.m. at the Wellesley Free Library, 530 Washington Street, Wellesley, MA

Carol Khouri, CFP, CDFA, a financial advisor with Wingate Wealth Advisors, will lead and moderate a panel of legal, mortgage and banking professionals who specialize in working with and representing divorcing couples and individuals. 

The panel of speakers includes:

  • Matthew P. Trask, Esq., Kelsey & Trask P.C., Framingham, MA;
  • David M. Gaffin, MBA, senior loan officer, Greenpark Mortgage, A Division of Berkshire Bank, Needham, MA; and
  • Barbie Jetter, MS, CPC, CDPP, regional lending manager, Bank of Canton, Canton, MA. 
The panel will discuss the various housing options that are available to divorcing couples during and after the divorce. Topics will include:

  • Selling the marital home and splitting the proceeds;
  • One spouse staying in the home until children graduate high school or college;
  • One spouse buying out the other’s interest;
  • What happens when there is no equity and the couple needs to do a short sale; and
  • Ramifications of doing a short sale. 

This seminar is offered free of charge, however a donation of $20 is suggested.

For more information or to register, visit http://thedivorcecenter.org.

Monday, June 4, 2012

What should I expect to learn at an Initial Divorce Consultation?

For many individuals who call our office, it is their first time speaking with an attorney.  They are nervous and know they need help with the divorce process but they have no idea what to expect.

Our first goal of an initial consultation is to reduce that anxiety by helping you understand what to expect.  We do this by explaining some basics about how divorce works in Massachusetts, and by obtaining some basic information about your specific case and the issues that you may face in dissolving your specific marriage.

Whether you meet with a mediator or an attorney for your divorce consultation, and whether the meeting is free or not, you should make sure that you are prepared to get the most out of that meeting.  To assist you in getting the most value out of your initial consultation we have prepared this list of helpful tips:

TIPS to prepare for your initial consultation:

1. Bring with you the following documents, if you have access to them:

A certified copy of your Marriage Certificate;
A copy of your last year's Income Tax Return with all schedules and attachments;
A copy of your credit report (to get one free report once a year from all three agencies go to annualcreditreport.com);
A copy of your and your spouse's most recent paystub; and
A copy of any court documents that have already been filed or served.

2. Write down any specific questions that you have so you don't forget to ask them at the meeting.

3. Write down your goals for the meeting, and tell the person you're meeting with why you are there. For example, if you just want information and aren't ready to file for divorce yet, make sure they know that because you may want information about marital mediation or counseling as well.

4. If you have decided to get divorced, write down your goals for the divorce process.  In other words what do you want to get out of your divorce, and what do you want your life to look like one year from now.

5. Ask at least the following questions:

What is divorce mediation and what are the pros and cons of mediation?
What is collaborative divorce and what are the pros and cons of collaborative divorce?
What are the pros and cons of filing a Complaint for Divorce and starting litigation?
Are you trained in either mediation or collaborative divorce?
Are my goals realistic?
How would you help me reach my goals?
How much of your practice is devoted to divorce work?
What is your hourly rate and retainer requirements?

Our final and most important recommendation is that you should hire an attorney or mediator that you believe you can trust.  While many people hire based on cost, the most important factor in deciding if you will be satisfied with how your case is handled is whether or not you believe you can trust your attorney or mediator.  Divorce involves intimate details of your life and often uncomfortable conversations.  If you don't trust your attorney or mediator and avoid these conversations your case will suffer and your goals may not be met.  Find someone that you believe you will work well with, even if it means interviewing multiple attorneys and mediators.

If you would like to learn more, click here to schedule a 1 hour free consultation with Attorney Kelsey.

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