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.

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