Monday, December 30, 2013

Is Litigation Worth It?

In a recent appeal over the payment of college education expenses by divorced parents for a minor child, the Massachusetts Appeals Court in Cooper v. Keto had to evaluate complicated choice of laws rules and Contempt standards for a contempt case that involved a California decree.  Unless you're excited by jurisdiction and choice-of-law disputes, the majority of this case is not noteworthy.  However, what really stood out in this decision had little to do with the substance, and more to do with the cost of this litigation.

The lower court awarded the Mother $90,263.25 in attorney's fees and the trial court upheld that award.  Even worse, the court notes that the Father's fees added up to approximately $250,000.

Concurring in the majority opinion, Justice Brown provided some enlightening commentary on these fees:
"Here, we again witness another puzzling situation in which the legal fees paid and awarded far exceed any amount that would be gained. Indeed, the father has acknowledged that the costs associated with defending the action might better have been spent on the child's college education. Litigation should be the last option, not the first. To that end, it is often beneficial to the parties, and counsel in advising their clients, to step back and take stock of what the case is about, what has gone on before, and what may lie ahead. In devising the judicial playbook, one should not forget the pocketbook. I suspect that not even an attorney with the skill of the legendary Patrick Hastings would have undertaken this matter. In short, it is not brilliance that is required here--it is simply "arithmetic." Cf. W.I. Cowin, Reflections in Retirement, 55 Boston Bar J. 13, 14 (2011) ("technical competence" of lawyers to litigate is greater today than ever, but lawyers often "fail to consider whether doing it is useful")." - Brown, J. (concurring).

While it may seem odd to see the Court telling people that litigation should be the last option, Justice Brown has simply stated what many divorce practitioners have come to recognize:  litigation often costs more than it's worth.

It may seem odd to hear that coming from a divorce lawyer as well, but most of us are not looking to overcharge our clients for services they don't need.  In fact, the number of divorce practitioners who also offer Collaborative Divorce and Divorce Mediation is growing because we have seen the need for a better way!

If you are considering a divorce, make sure you know all of your options.  If you only interview a litigator, you many not be told how much you can save (both financially and emotionally) by trying mediation or collaboration.

Litigation is not only the most costly option, even the court agrees, it should be the last option when trying to resolve family disputes.  

Wednesday, November 27, 2013

What is the Purpose of Section 3 on the New Child Support Guidelines Worksheet?

Asking why Section 3 is on the new child support guidelines worksheet is like asking why bad things happen to good people.  Everyone has a different theory and none of them are really satisfying.

The 2009 Child Support Guidelines Worksheet had two sections which broke the worksheet down into an Income Section and a Calculation Section, with a resulting recommended child support amount.  The new 2013 Child Support Guidelines worksheet changes these two sections and the calculations, which he have discussed previously.

In addition, the 2013 guidelines added a new section, Section 3 titled: AVAILABLE INCOME ABOVE $4,808 (If applicable.)

In cases where the combined household income is less than $4,808 per week ($250,000 per year), Section 3 will show all zeros.  However, if the family income exceeds this figure, Section 3 displays the proportional amount that each party has left-over in gross income after using the first $4808 per week in combined income to calculate the minimum presumptive child support order.

For example, if the payor has $7,692 in income per week ($400,000 per year) and the recipient has $1,923 per week ($100,000 per year), then the child support guidelines would use only the first $4,808 per week and assign 80% of the child support figure to be paid by the payor because the payor has 80% of the household income.  This means that the child support calculation in Section 2 of the worksheet only used the first $3,846 from the payor and $962 from the recipient (totaling $4,808 per week).

This leaves $3,846 and $962 left-over, unused for this calculation. Section 3 would then display these unused funds.

While the language of the Guidelines changed slightly relating to how the court should calculate child support in these high income cases, it really only clarified how to calculate the minimum presumptive order using a proportion of each parties income to the total income.  The Guidelines make no mention of Section 3 and what the court is meant to do with this information.

The worksheet itself indicates below the title of Section 3 that this section should be "(Considered at the discretion of the Court.)"  Without any guidance as to how this information should be used we are all struggling to know what to tell clients and how to prepare presentations for the court on this issue.

One Judge who was on the Task Force has indicated that Section 3 was for mostly informational purposes.  By providing the information directly on the worksheet it gives Judges the ability to decide whether there should be alimony (in appropriate cases) or additional child support.  Of course this information was available before, but the worksheet now saves the Judges from doing additional math.

In addition, there is a "suggestion" on page 68 of the Final Report of the 2012 Task Force regarding how we might uses this information:

"The Task Force was urged by the bar to provide guidance on how to calculate child support when the combined available income exceeds $250,000. Public input suggests that a lack of guidance leads to inconsistency in results throughout Massachusetts. In an efort to alleviate any inconsistency, the Task Force suggests that in cases where combined available income exceeds $250,000, the guidelines support amount should be applied on the first $250,000 and then applied to the combined available income above $250,000 ($4,808 weekly) in the same proportion for both the recipient’s and payor’s income as provided on line 1h of the Child Support Guidelines Worksheet." 
Essentially this recommends using the figures provided in section 3 and entering them back into the guidelines worksheet as Income in Section 1 to see what additional child support might be recommended.  In the example above, ($3,846 and $962 respectively left-over)  these figures would be plugged back into a new worksheet in the income section and yield a second child support amount.  Because I have conveniently used exactly $500,000 of total income in this example, the results will be double the minimum presumptive order (because the second worksheet will result in the same award as the first worksheet).

In cases where the total income exceeds $500,000 this could mean preparing even more guidelines worksheets, because there would still be additional income in Section 3 even on the second worksheet.

While informative, this is non-binding since this "suggestion" didn't end up in the final Guidelines.  The obvious practice tip for attorneys, though, is to include this additional calculation in their presentation to the court, along with this quote from the Task Force Report.  Even in mediation and collaborative divorce cases, I would suggest providing this information to the parties as it may assist them in reaching a reasonable settlement figure.

Wednesday, November 6, 2013

Is it Easier to Remove a Child of Unmarried Parents from the Commonwealth?

This past summer we posted a full blog series on issues facing Unmarried Parents in Massachusetts.  While many issues that unmarried parents face may be different than those faced by married parents, most of the issues will be the same.  Parenting a child still comes with may of the same worries, financial obligations, affections, and lessons, regardless of the parents' relationship with each other.  However, when legal realities collide with economic or practical realities, there may be significant differences in how unmarried parents are treated.

Removal cases are one example of this disparity in Massachusetts.  Removal is a legal term of art for the simple concept of when one parent wants to move their residence out of state and take their child with them.  In Massachusetts, M.G.L. c. 208 Section 30 covers the removal of minor children in a divorce case, and prohibits removal without consent of both parents or order of the court.  We explore in what circumstances the court will grant such an order in this previous post.  The determination of the court in such cases turns on the custody arrangement of the parents and the benefits and disadvantages of the child to moving.

However, in the case of unmarried parents, the custody situation starts out much differently than in divorce cases.

If the father is not on the birth certificate, then the mother is by default the only legal parent and until and unless the father seeks a determination of parentage, the mother can remove the child to a different state.  If this happens and the father doesn't act immediately to seek a determination by the court, jurisdiction over custody could soon change to the other state, which would make it very difficult (if not impossible) to force her return.

If the father is on the birth certificate, but the parties have not been to court yet, there is still a different standard for determining joint legal custody in the case of unmarried parents.  In a divorce case, there is a presumption that the parties start with joint legal custody.  However, under the paternity statute, M.G.L. c. 209c Section 10 the court must make a finding of joint parenting to order joint legal custody to unmarried parents.

The process for applying this standard and making a determination relative to removal in the case of unmarried parents is outlined in the Smith v. McDonald case, a case where the Massachusetts Supreme Judicial Court overturned the trial court's ruling that a mother was required to return the child from New York to Massachusetts.

Visit our site for more information about the law relating to unmarried parents in Massachusetts.

How often do Collaborative Divorces Succeed?

One of the downsides of Collaborative Law, as with any alternative dispute resolution process, is that if you do not settle your case outside of court, there is still the risk that you will end up in court litigating your dispute.  Many people still choose to give amicable settlement a fair chance, but a common question when trying to make this choice is "how often do these cases succeed in settling outside of court?"  While every case is different and will present unique issues, there is now some available data to answer this question.

The International Academy of Collaborative Professionals (IACP) has collected data on Collaborative cases from the professionals involved in those cases through the use of an IACP Professional Practice Survey and reported some of their findings in The Collaborative Review Spring 2012 issue.

Based on a a total of nine hundred and thirty–three cases, which were reported from October 16, 2006 through July 6, 2010, they found that:

 "86% of all reported Collaborative cases settled with an agreement on all issues."  

In addition, 14% of the cases that terminated without a full agreement had reached a partial agreement.

These percentages confirm that most Collaborative cases will settle, and that is no surprise when clients are well informed beforehand about the process and choose to enter a process aimed at working together.  Hopefully, this information will lead to more people choosing to utilize the Collaborative process.  Especially given the amount of control over your own life that the Collaborative process provides, and the positive feedback we typically receive from our collaborative clients.

Are Complaints for Contempt getting Harder to Win?

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.  Sanctions can include civil fines, payment of attorney's fees and costs, modification to existing orders or judgments, or in some cases incarceration.

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.

If the Contempt involves a financial order, depending on the remedy you are seeking, the US Supreme Court case of Turner v. Rogers may also now require that you prove an "ability to pay."  Traditionally in Massachusetts the Court's have allowed "inability to pay" an order as a defense to certain enforcement attempts (such as incarceration).  This wouldn't excuse the debt, but allow a Defendant to postpone payment or make payments over time.

In Turner, the SJC seems to have moved the burden of proving an "ability to pay" to the Plaintiff, if the Plaintiff is requesting incarceration as enforcement.  In addition, Turner suggests that when a Plaintiff has assistance (from counsel or DOR), the state may need to provide the Defendant with counsel if incarceration is possible.

While the ruling does not require that the Defendant have counsel when Plaintiff doesn't have counsel, " the State must nonetheless have in place alternative procedures that assure a fundamentally fair determination of the critical incarceration-related question, whether the supporting parent is able to comply with the support order."

In Massachusetts, some Judges have expanded on this case and expressed that to find a person in Contempt now requires an express finding of ability to pay, which may need more than just a showing that Defendant's financial statement is incomplete.

We, therefore, offer the following practice tips when seeking to prosecute a Complaint for Contempt in Massachusetts:

  • Request a Financial Statement (and possibly further discovery) from the Defendant in advance of the Contempt hearing.
  • Bring a Proposed Judgment and Proposed Findings of Fact to the Contempt hearing.
  • When necessary, subpeona information regarding bank accounts or employment to assist in proving a Defendant's "ability to pay."

Tuesday, September 24, 2013

The New Child Support Guidelines on your Phone

On August 1, 2013, the new Massachusetts Child Support Guidelines took effect.  The new guidelines contain numerous language changes which affect the interplay of child support and other issues in a divorce or paternity case; touching on everything from shared parenting to college education costs.

In addition, the child support formula and the worksheet for the 2013 guidelines is significantly different than then 2009 guidelines.  The court has issued a new worksheet which is required if you are filing any matter in the Probate & Family Court that involves support of children.  To assist you in completing this form Kelsey & Trask. P.C. and Finn & Eaton, P.C. have created the following user-friendly apps:

Massachusetts Child Support Calculator for the iPhone
by Kelsey & Trask, P.C.

MA Child Support Calculator for Android
by Finn & Eaton, P.C.

Massachusetts Divorce Information for Windows Phone
by Kelsey & Trask, P.C.

Massachusetts Child Support Guidelines Web-App
by Kelsey & Trask, P.C.

for use anywhere you have internet access on any computer or device:

For more information about the language changes in the 2013 Guidelines read these previous posts:

New Massachusetts Child Support Guidelines will Reduce Support for Many - June 24, 2013

High Income Households under the New Massachusetts Child Support Guidelines - June 25, 2013

The Increased Impact of Shared Parenting under the New Child Support Guidelines - June 25, 2013

Changes in the Law reflected in the New Massachusetts Child Support Guidelines - June 26, 2013

All Your Children under the New Child Support Guidelines - June 26, 2013

Thursday, September 19, 2013

When is a Marriage not a Marriage?

A disturbing item of recent news is the proliferation of positive pregnancy tests for sale on craigslist and similar sites.  Aside from the grossness factor of buying a stick someone urinated on, this practice raises some obvious and some not-so-obvious concerning scenarios.  Are the potential purchasers of these positive tests looking to commit a prank, or actually trying to convince someone that they are pregnant?

If such a test was used to obtain a marriage proposal are their legal ramifications to that fraud?  Fraud can carry criminal sanctions if the intent was to extort money or sex from someone, and can also result in actionable civil damages.  Taken one step further, if the fraud resulted in a marriage, would that marriage be legal?

While there are ways in which a marriage can be void, fraud does not automatically void a marriage.  However, since marriage is a contract it can be voidable.  In other words a marriage can be annulled if the contract was entered into upon the innocent party's reliance on a fraudulent misrepresentation that the offending party intended to cause the marriage.

Void vs. Voidable

A void marriage is considered to have never happened, without a court having to annul it.  Examples of issues with a marriage could cause it to be void are affinity or consanguinity (incest in violation of M.G.L. c. 207 s. 1 or 2), polygamy (marrying someone when you are already married in violation of M.G.L. c. 207 s. 4), and if the spouses are under a certain age (under common law when a wife is under 12 and husband is under 14).

A voidable marriage may be annulled by a court if a party can prove that the bases for the marriage contract is improper under common law, but a voidable marriage is not automatically void.  One example of an improper bases is the example of fraud described above.  If a spouse tricked the other spouse into marrying them based on a misrepresentation about being pregnant, then that marriage might be voidable.  Since this is a decision based in a factual analysis of the circumstances, the court would likely also consider other factors.  For example, if the marriage continued well beyond the original fraud, was consummated and affirmed in other ways then it might not be voidable after a certain point.  These types of cases will rely heavily on the particular circumstances.

The possibility of defeating an annulment proceeding, however, should in no-way encourage anyone to defraud someone into marrying them.

In other words, don't buy a positive pregnancy test.

Thursday, August 22, 2013

Summer Lovin' Series: How do I get a paternity test?

Summer is finally here.  The air is humid, the sunblock is out, and it's finally time for vacations and school break.  But enjoying summer too much has its consequences.  Our Summer Lovin' series is about those consequences for Unmarried Parents in Massachusetts:

Summer Lovin' Series #10: How do I get a paternity test?

If the presumed father denies that he is the father of a child born to an unmarried mother, then DOR can perform a DNA parentage test if the mother requests DOR services.  If the mother or DOR has filed a complaint seeking child support from the father, and the father disputes paternity, then the father can file a Motion requesting that the court order a DNA test.

This usually takes 6-8 weeks, and can be required by the court if the presumed father or the mother refuses to participate.

You can also obtain a private test which is usually faster but will likely cost approximately $600.

For more information visit our webpage devoted specifically to information for unmarried parents.

Wednesday, August 14, 2013

Summer Lovin' Series: What happens if one parent wants full custody of a child born out of wedlock?

Summer is finally here.  The air is humid, the sunblock is out, and it's finally time for vacations and school break.  But enjoying summer too much has its consequences.  Our Summer Lovin' series is about those consequences for Unmarried Parents in Massachusetts:

Summer Lovin' Series #9: What happens if I want full custody of a child born out of wedlock?

Unmarried mothers in Massachusetts are presumed to be the sole legal and physical custodian of a child without going to court.  If the father requests it, the court can order that either party have sole legal or physical custody or that the parties share legal or physical custody depending on your specific circumstances.

However, "full custody" is somewhat of a myth, because unless the other parent is unfit they will still be involved in the child's life to some extent.

While sole legal custody allows one parent to make major decisions, sole physical custody does not mean the child is always with one parent.  Sole physical custody typically means that one parent has the child two thirds of the time or more, and the other parent has time with the child one third of the time or less.  Often these labels are less important than working out a practical parenting plan.

For more information visit our webpage devoted specifically to information for unmarried parents.

Wednesday, August 7, 2013

Summer Lovin' Series:The DOR is requesting past child support. Can they do that?

Summer is finally here.  The air is humid, the sunblock is out, and it's finally time for vacations and school break.  But enjoying summer too much has its consequences.  Our Summer Lovin' series is about those consequences for Unmarried Parents in Massachusetts:

Summer Lovin' Series #8: The DOR is requesting past child support.  Can they do that?

In a Divorce case, a custodial parent cannot receive any child support for time prior to the filing and service of the Complaint. This is because there is a presumption that the parents lived together and shared income until the case was filed.

In a Paternity case there is no such presumption and DOR or a custodial parent can request child support arrears dating all the way back to the birth of the child. There are a number of factors that the Court can consider in determining the amount of and the appropriateness of a child support arrearage and you should consult with an attorney to discuss these factors, especially since this can often be a very significant amount of money.
Kelsey & Trask, P.C. is now offering flat fee representation at DOR support hearings for a flat fee of $750 in most cases.  For teen parents under the age of 18, Kelsey & Trask, P.C. offers free representation for DOR support hearings.

For more information visit our webpage devoted specifically to DOR hearings.

Thursday, August 1, 2013

Summer Lovin' Series: How much Child Support can DOR collect?

Summer is finally here.  The air is humid, the sunblock is out, and it's finally time for vacations and school break.  But enjoying summer too much has its consequences.  Our Summer Lovin' series is about those consequences for Unmarried Parents in Massachusetts:

Summer Lovin' Series #7: How much Child Support can DOR collect?

Child Support is calculated using a formula called the Massachusetts Child Support Guidelines. The formula is presumptive, and Judges can only vary from the formula in specific circumstances. You should consult an attorney to discuss what facts in your case might warrant a variation from the formula.

To view the formula and calculate your Child Support view our Massachusetts Child Support Guidelines Calculator.

Kelsey & Trask, P.C. is now offering flat fee representation at DOR support hearings for a flat fee of $750 in most cases.  For teen parents under the age of 18, Kelsey & Trask, P.C. offers free representation for DOR support hearings.

For more information visit our webpage devoted specifically to DOR hearings.

Friday, July 26, 2013

Summer Lovin' Series: How long can DOR collect child support for?

Summer is finally here.  The air is humid, the sunblock is out, and it's finally time for vacations and school break.  But enjoying summer too much has its consequences.  Our Summer Lovin' series is about those consequences for Unmarried Parents in Massachusetts:

Summer Lovin' Series #6: How long can DOR collect child support for?

In Massachusetts, child support can continue until the child is twenty-three (23). Except for the absolute maximum of age twenty-three (23), child support does not end upon a specific age but rather when the child becomes "emancipated." Emancipation in Massachusetts is defined in M.G.L. ch. 208 s. 28.

In basic terms child support in Massachusetts stops when the child turns age:
  • 18, unless the child is still principally dependent on the custodial parent (i.e. the child is no longer principally dependent if they've moved out of the home, except for college, is employed full time, is married, of has joined the military);
  • 21, unless the child is enrolled in a full-time undergraduate college program;
  • 23, no matter what.
Kelsey & Trask, P.C. is now offering flat fee representation at DOR support hearings for a flat fee of $750 in most cases.  For teen parents under the age of 18, Kelsey & Trask, P.C. offers free representation for DOR support hearings.

For more information visit our webpage devoted specifically to DOR hearings.

Monday, July 22, 2013

Summer Lovin' Series: Why is the DOR taking me to Court for Child Support?

Summer is finally here.  The air is humid, the sunblock is out, and it's finally time for vacations and school break.  But enjoying summer too much has its consequences.  Our Summer Lovin' series is about those consequences for Unmarried Parents in Massachusetts:

Summer Lovin' Series #5: Why is the DOR taking me to Court for Child Support?

The Department of Revenue (DOR) files child support complaints on behalf of parents when they request it or when they receive services from the Department of Transitional Assistance. DOR hearings typically result in child support judgments, which can last as long as 23 years.  It's important to have representation at this hearing so that the agreements or judgments that are reached are fair to both the parents and the child.

DOR Hearings do not typically include custody and parenting plan negotiations.  Usually a separate Complaint is required to resolve parenting and custody issues, though sometimes they can be settled at a DOR hearing if both parties agree.

Kelsey & Trask, P.C. is now offering flat fee representation at DOR support hearings for a flat fee of $750 in most cases.  For teen parents under the age of 18, Kelsey & Trask, P.C. offers free representation for DOR support hearings.

For more information visit our webpage devoted specifically to DOR hearings.

Wednesday, July 17, 2013

Summer Lovin' Series: How do Unmarried Parents pay for their Child's Expenses?

Summer is finally here.  The air is humid, the sunblock is out, and it's finally time for vacations and school break.  But enjoying summer too much has its consequences.  Our Summer Lovin' series is about those consequences for Unmarried Parents in Massachusetts:

Summer Lovin' Series #4: How do Unmarried Parents pay for their Child's Expenses?

There are many expenses involved in raising a child, starting with the costs of pregnancy and continuing all the way through college.  When unmarried parents can't agree on how they will divide their child's expenses, then the court can make certain orders regarding support.

The court can order parents to pay child support, extracurricular activities, health insurance, uninsured medical costs, birthing and pregnancy costs, and even education and college expenses.

Child Support is typically paid by the non-custodial parent to the custodial parent for the support of the child. To obtain a court order for child support you can request that DOR file a case on your behalf, or you can file a Complaint to establish support in the court yourself (or with the assistance of an attorney).

Child Support is then typically calculated using a formula called the Massachusetts Child Support Guidelines. The formula is presumptive, and Judges can only vary from the formula in specific circumstances. You should consult an attorney to discuss what facts in your case might warrant a variation from the formula.

To view the formula and calculate your Child Support view our Massachusetts Child Support Guidelines Worksheets click here.

For more information visit our webpage devoted specifically to information for unmarried parents.

Tuesday, July 9, 2013

Summer Lovin' Series: How do Unmarried Parents work out Custody and a Parenting Plan?

Summer is finally here.  The air is humid, the sunblock is out, and it's finally time for vacations and school break.  But enjoying summer too much has its consequences.  Our Summer Lovin' series is about those consequences for Unmarried Parents in Massachusetts:

Summer Lovin' Series #3: How do Unmarried Parents work out Custody and a Parenting Plan?

Children of unmarried parents are by default in the custody of their mother. Parents can agree to share custody or arrange for visitation through collaborative negotiation or mediation when appropriate. If they can't agree then the court can create a parenting plan with the filing of a Complaint for Custody and Visitation.

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.  You should ask your attorney to see a sample of their Parenting Plan and to explain what each provision of the plan is for.

In addition, using a calendar to visualize proposed parenting plans can be helpful in figuring out what will work best for your family. For that purpose we have created the Parenting Plan Worksheet. You can use the Parenting Plan Worksheet to visualize typical parenting plans, including those recommended by the Massachusetts Model Parenting Plans, or create your own custom plan.

For more information visit our webpage devoted specifically to information for unmarried parents.

Tuesday, July 2, 2013

Summer Lovin' Series: Who fills out the Birth Certificate when parents are not married?

Summer is finally here.  The air is humid, the sunblock is out, and it's finally time for vacations and school break.  But enjoying summer too much has its consequences.  Our Summer Lovin' series is about those consequences for Unmarried Parents in Massachusetts:

Summer Lovin' Series #2: Who fills out the Birth Certificate when parents are not married?

The Birth Certificate is completed with information provided by the mother of the baby.  If she is unmarried, then she can request the father's name be included.  In order to include the father's name he must sign a Voluntary Acknowledgment of Paternity and then his name will appear on the birth certificate.

Signing a Voluntary Acknowledgement has significant legal ramifications.  Even if a father is not the biological father, signing the Voluntary Acknowledgement could make him the legal father, with both the rights and obligations of being the father.  (see this previous related post: Could I be Forced to Pay Child Support for someone else's Child?)

For more information visit our webpage devoted specifically to information for unmarried parents.

Wednesday, June 26, 2013

All Your Children under the New Child Support Guidelines

The Duggar Family (from examiner.com)
The Massachusetts Child Support Guidelines recognize that families with multiple children have increased expenses (although those expenses are not simply doubled with each additional child). The 2009 guidelines included a multiplier for each additional child (up to 5, sorry Duggars).  This multiplier directly increases the amount of child support owed by a specific percentage.  In the 2013 guidelines these percentages were increased, though due to the reduction in the base rates for support the impact on prior orders may simply cancel each other out.

The increase in rates is shown below:

Obviously from the chart there is not a suggested multiplier for families like the Duggars or Octomom, but the guidelines do at least address these situations by setting a minimum presumption:
"The guidelines formula applies to families with 1-5 children. For more than five children, the order should be at least the amount ordered for five children."
Of course, things get even more complicated when divorced or unwed parents start second families. The increases described above only apply to children in the same case of the same parents.  When one parent has multiple children by separate parents, the guidelines are built to address this scenario as well (with certain limitations addressed below).  The 2009 guidelines specifically indicate that in creating a child support order, the court should consider the financial cost of a child from another relationship (whether there is a support order or not).  In modifying orders a subsequent new child cannot be used to reduce an existing order, but can be used to defend an increase.

While this language was clarified and the emphasis rearranged in the 2013 guidelines, the message essentially stays the same.  The guidelines take into account prior support orders and obligations when calculating new orders.

However, since the existing order only reduces the gross income available to calculate the new order, the addition of subsequent child support orders can eat away at a payor's income quickly.  Using the guidelines, without deviation, leaves most parents with no net income left to pay support after the fifth child by different parents.  While this is an unusual situation, it does occur and the guidelines do not fit these situations practically.  When the serial parent, like this man with 22 kids from 14 different women, is not lucky enough to hit the lottery or be an NFL star, those children are likely to be left with little to no support from that parent regardless of the what the guidelines require.

This is just one example, though, of where the guidelines might not account for a families unique circumstances.  Ultimately, the guidelines are a one-size fits all solution.  The Task Force every four years does their best to update the guidelines to fit as many possible scenarios as reasonably as they can.  In the end, though, if you can settle your case through mediation, collaborative law or settlement, you're much more likely to feel that your support solution fits your families unique situation better than the 2009 or the 2013 guidelines.

SCOTUS avoids 14th Amendment analysis on Prop 8 through Standing Analysis, Still a Win?

In the second of a pair of same-sex marriage rights cases, the Supreme Court of the United States refused to deal with the substantive issue declaring a lack of standing instead.  In deciding the case on standing the Court avoided addressing the constitutionality of denying same-sex couples the right to marry.  However, in deciding the issue on standing the majority decision can be read to condone the actions of the public officials who refused to defend Prop 8.

Known as the Prop 8 case (a/k/a Prop H8), everything you need to know about Hollingsworth v. Perry is summarized below:

Prior to reaching SCOTUS here is what happened:

  • California Supreme Court follow Massachusetts in declaring denial of same-sex marriages in violation of the California Constitution.
  • California voters then pass Proposition 8, amending the California Constitution to define marriage for opposite sex couples only.
  • Same-sex couples sued California's governor and state and local officials claiming Prop 8 is unconstitutional under the U.S. Constitution's 14th Amendment, Due Process and Equal Protection Clause.
  • California officials refused to defend the law, and the Federal District Court allowed the Petitioners of Prop 8 to defend it.
  • The District Court, after a bench trial, declared Prop 8 unconstitutional.
  • Petitioners appealed to the Ninth Circuit, which certified a question to the California Supreme Court whether petitioners could defend the suit.  The California Supreme Court answered yes, that the petitioners do have standing to defend it.
  • The Ninth Circuit then affirmed the unconstitutionality ruling of the District Court.

On March 26, 2013, the case was argued in front of the Supreme Court of the United States.

On June 26, 2013, SCOTUS held that petitioners did not have standing to appeal the District Court's order.  This means that the District Court ruling stands and Prop 8 is unconstitutional in California, but does not create any controlling precedent for other states.

Here are some highlights from the majority decision written by Chief Justice Roberts:

"The public is currently engaged in an active political debate over whether same-sex couples should be allowed to marry."

"[P]etitioners, who oppose same-sex marriage, ask us to decide whether the Equal Protection Clause “prohibits the State of California from defining marriage as the union of a man and a woman.”

"Respondents, same-sex couples who wish to marry, viewthe issue in somewhat different terms: For them, it is whether California—having previously recognized theright of same-sex couples to marry—may reverse that decision through a referendum."

"Federal courts have authority under the Constitution toanswer such questions only if necessary to do so in the course of deciding an actual 'case' or 'controversy.'... This is an essential limit on our power: It ensures that we act as judges, and do not engage in policymaking properly left to elected representatives."

"In other words, for a federal court to have authority under the Constitution to settle a dispute, the party before it must seek a remedy for a personal and tangible harm."

"Here, however, petitioners had no “direct stake” in the outcome of their appeal. Their only interest in having the DistrictCourt order reversed was to vindicate the constitutional validity of a generally applicable California law."

"We have repeatedly held that such a “generalized grievance,” no matter how sincere, is insufficient to confer standing."

The Court relied heavily on Diamond v. Charles a case in which "we refused to allow Diamond, a pediatrician engaged in private practice in Illinois, to defend the constitutionality of the State’s abortion law.... because Diamond was not able to assert an injury in fact of his own."

The Petitioners argument that California authorized them to act as agents of the state to appeal the law failed as well because "the most basic features of an agency relationship are missing here. Agency requires more than mere authorization to assert a particular interest. “An essential element of agency is the principal’s right to control the agent’s actions.” 1 Restatement (Third) of Agency §1.01, Comment f (2005) (hereinafter Restatement). Yet petitioners answer to no one; they decide for themselves, with no review, what arguments to make and how to make them.... Neither the California Supreme Court nor the Ninth Circuit ever described the proponents as agents of the State, and they plainly do not qualify as such."

And perhaps the best point from the dissent written by Justice Kennedy:

"There is much irony in the Court’s approach to justiciability in this case. A prime purpose of justiciability is to ensure vigorous advocacy, yet the Court insists upon litigation conducted by state officials whose preference is to lose the case. The doctrine is meant to ensure that courts are responsible and constrained in their power, but the Court’s opinion today means that a single district court can make a decision with far-reaching effects that cannot be reviewed."

Conclusion:  The standing argument is still significant, even if you were hoping for something more substantive.

Justice Kennedy rightfully points out that this is an unusual situation where elected officials refuse to defend vigorously a law enacted by the same voters that elected them.  This civil disobedience of elected officials due presumably to moral objection to a Proposition passed by majority vote is an interesting sub-plot of the Prop 8 story which perhaps has not received enough attention.

Do voters have a right to require their elected officials, by majority vote, to enforce a law those officials find morally objectionable?  Or is that act of civil disobedience an appropriate check on a democratic system which at times is unbalanced because of majority rule.

DOMA No More, SCOTUS finds Section 3 Unconstitutional

In the first of a pair of same-sex marriage rights cases decided today, the Supreme Court of the United States declared portions of DOMA (the so-called "Defense of Marriage Act") unconstitutional.  Although there were some concerns about jurisdiction in this case due to the executive branches failure to defend DOMA vigorously the court determined there was jurisdiction and that DOMA is unconstitutional under the equal liberty of persons protected by the Fifth Amendment.

Known as the DOMA case, everything you need to know about United States v. Windsor is summarized below:

Prior to reaching SCOTUS here is what happened:

Edith Windsor and Thea Spyer, two women, met in New York City in 1963 and began a long-term relationship.

Windsor and Spyer registered as domestic partners when New York City gave that right to same-sex couples in 1993.

In 2007, Edith Windsor and Thea Spyer, then residents of New York, were married in Ontorio Canada.

Under the laws of the State of New York their Ontario marriage is a legally valid marriage.

Thea died in 2009 and left her entire estate to her wife, Edith, who sought to claim the estate tax exemption for surviving spouses.  Being denied due to DOMA's restriction of the definition of "spouse" for federal statutes, she paid $363,053 in estate taxes but challenged the constitutionality of his provision of DOMA.

While this suit was pending, the Attorney General of the United States notified the Speaker of the House of Representatives that the Department of Justice would no longer defend the constitutionality of DOMA’s §3.

In response, the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives voted to intervene in the litigation to defend the constitutionality of §3 of DOMA.

The Federal District Court and the Court of Appeals ruled that this portion of DOMA was unconstitutional and ordered a refund.

Here are some highlights from the majority decision written by Justice Kennedy:

"In 1996, as some States were beginning to consider the concept of same-sex marriage, see, e.g., Baehr v. Lewin, 74 Haw. 530, 852 P. 2d 44 (1993), and before any State had acted to permit it, Congress enacted the Defense of Marriage Act (DOMA), 110 Stat. 2419."

"DOMA contains two operative sections: Section 2, which has not been challenged here, allows States to refuse to recognize same-sex marriages performed under the laws of other States. See 28 U. S. C. §1738C." (emphasis added)

"Section 3 is at issue here. It amends the Dictionary Act in Title 1, §7, of the United States Code to provide a federal definition of 'marriage' and 'spouse.'"

"The enactment’s comprehensive definition of marriage for purposes of all federal statutes and other regulations or directives covered by its terms, however, does control over 1,000 federal laws in which marital or spousal status is addressed as a matter of federal law. See GAO, D. Shah, Defense of Marriage Act: Update to Prior Report 1 (GAO–04–353R, 2004)." (emphasis added)

"In the case now before the Court the attorneys for BLAG present a substantial argument for the constitutionality of §3 of DOMA. BLAG’s sharp adversarial presentation of the issues satisfies the prudential concerns that otherwise might counsel against hearing an appeal from a decision with which the principal parties agree."

"For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization. That belief, for many who long have held it,became even more urgent, more cherished when challenged. For others, however, came the beginnings of a new perspective, a new insight."

"State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, see, e.g., Loving v. Virginia, 388 U. S. 1 (1967); but, subject to those guarantees, “regulation of domestic relations” is “an area that has long been regarded as a virtually exclusive province of the States.” Sosna v. Iowa, 419 U. S. 393, 404 (1975).

"Marriage laws vary in some respects from State to State... But these rules are in every event consistent within each State... Against this background DOMA rejects the long established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next."

"The Federal Government uses this state-defined class for the opposite purpose—to impose restrictions and disabilities. That result requires this Court now to address whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment."

"DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. See U. S. Const., Amdt. 5; Bolling v. Sharpe, 347 U. S. 497 (1954). The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. Department of Agriculture v. Moreno, 413 U. S. 528, 534–535 (1973)."  (emphasis added)

"The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence."

"DOMA’s principal effect is to identify a subset of state sanctioned marriages and make them unequal."

"DOMA also brings financial harm to children of same sex couples."

"What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution."

What does it all mean?

First, this ruling means a refund of $363,053 to Edith Windsor.

For both same-sex marriages, and same-sex divorces, federal benefits between spouses are now available to same-sex married couples.  This includes over 1000 benefits as indicated by the Court, including filing joint tax returns and other tax benefits for spouses (such as the estate tax benefit at issue in this case).

What doesn't it mean?

The court did not rule on the constitutionality of same-sex marriage under the U.S. Constitution, and gave mixed signals as to how they might rule on that issue by trumpeting state's rights while at the same time walking right up to the edge of naming same-sex couples as a protected class without actually taking that leap.

Under section 2 of DOMA, left intact by this ruling, states can still refuse to recognize same-sex marriages from other states.

Fore more information about same-sex divorce in Massachusetts please visit SameSexMassDivorce.com

Changes in the Law reflected in the New Massachusetts Child Support Guidelines

Between 2009 and 2013 a lot has changed.  In 2009 Kanye West was the only one who couldn't wait for Taylor Swift to finish her speech and in 2013 ain't nobody got time for that.  We went from not knowing who Susan Boyle was to again not knowing who Susan Boyle is.  And your Three Wolf Moon T-shirt is probably getting a little worse for wear.

Believe it or not, Massachusetts family laws relating to support between 2009 and 2013 have seen some significant changes as well.  With the new child support guidelines, released on June 20, 2013 and taking effect on August 1, 2013, the Chief Justice and the Child Support Task Force had the opportunity to reflect these changes in the new guidelines.

More specifically, the guidelines reference both the Alimony Reform Act of 2011 and the recent decision in Morales v. Morales.  Since we have discussed both of these changes in previous posts (links above) we will only address here how the new guidelines reference these changes:

The Alimony Reform Act of 2011: The Alimony Reform Act of 2011 significantly changed the landscape of alimony calculation and duration in Massachusetts.  The reference in the Act to income used in child support orders complicated the already confusing link between alimony and child support orders.  The Task Force identifies this link and encourages Courts, within the statute's discretionary provisions, to consider the fairest way of balancing the two types of support:
Chapter 124 of the Acts of 2011 (An Act Reforming Alimony in the Commonwealth)amended G. L. c. 208 and now prohibits the use of gross income which the Court has already considered in making a child support order from being used again in determining an alimony order. See G. L. c. 208, § 53(c)(2). Consideration may be given by the parties to preparing alternate calculations of alimony and child support to determine the most equitable result for the child and the parties. Depending upon the circumstance, alimony may be calculated first, and in other circumstances child support will be calculated first. Judicial discretion is necessary and deviations should be considered.
In Morales v. Morales, SJC 11104, the SJC clarified the standard for modification of Child Support orders. In child support modification cases, the SJC notes that the 2009 Child Support Guidelines are inconsistent with the statute where the guidelines required a change in circumstances to request a modification of an existing order.  The SJC clarified that under the statute "modification is presumptively required whenever there is an inconsistency between the amount of child support that is to be paid under the existing support order and the amount that would be paid under the Guidelines."

The Task Force responded by adding this exact language to the list of reasons for modifying an existing order:
A child support order may be modified if any of the following circumstances exist:
  1. there is an inconsistency between the amount of the existing order and the amount that would result from the application of the child support guidelines;
  2. health insurance previously available at reasonable cost is no longer available (or if available but not at reasonable cost); or
  3. health insurance not previously available to a party at reasonable cost has become available; or
  4. any other material and substantial change in circumstances has occurred. (emphasis added)

Tuesday, June 25, 2013

The Increased Impact of Shared Parenting under the New Child Support Guidelines

In 2009, the Massachusetts Child Support Guidelines added language acknowledging the increase in shared parenting by specifically defining how the Court should calculate child support differently when parents share parenting time "equally, or approximately equally."  The 2009 Guidelines recognized the sharing of parenting costs in shared parenting arrangements, determining the presumptive support amount "by calculating the child support guidelines twice, first with one parent as the Recipient, and second with the other parent as the Recipient. The difference in the calculations shall be paid to the parent with the lower weekly support amount."

Prior to this addition there was significant deviation in how different Judges handled the question of child support in shared parenting arrangements, ranging from no child support to standard child support guidelines, both extremes of which fail to recognize the financial impact of shared parenting.

However, the 2009 Guidelines still left questions as to how to handle cases that didn't fit a one-third or equal parenting time.  While the 2009 guidelines indicated that they were "based upon the child(ren) having a primary residence with one parent and spending approximately one-third of the time with the other parent" they didn't give guidance on what to do when a parent had less than one-third time.  Nor did they give guidance on where to draw the line between one-third time and "approximately equal."

The 2013 Guidelines make an effort to clarify these two issues, though arguably the result is still quite vague.

Less than one-third time:  The Task Force added to the new guidelines the following language:
If parenting time is less than one-third for the parent who is not the residential parent, the Court may consider an upward adjustment to the amount provided under the child support guidelines.
While this change recognizes the increased impact and financial costs on true "single parents" the direction given to the Courts is still less than clear.  In cases where the non-custodial parent is completely absent, this language will likely lead to Judges listening intently to arguments for increased support.  But when the parenting time works out to 25% instead of 33%, Judges will likely decline to exercise this additional discretion except in cases where a specific need is also shown.

In between 33% and 50% parenting time:  The Task Force also added to the new guidelines the following language:
Where parenting time and financial responsibility are shared in a proportion greater than one-third, but less than 50%, the child support guidelines shall be calculated first with one parent as the Recipient, and second as if the parties shared custody equally. The average of the base child support and the shared custody cross calculation shall be the child support amount paid to the Recipient.
This is essentially a compromise between the 33% and 50% calculations, but still doesn't give exact direction to parties or the Courts.  If a parent has 49% of the parenting time, is that "approximately equal" or "less than 50%".  Obviously, it is both.  So which paragraph applies?  The Court will likely provide some common sense rulings in these cases where the lines are blurred, and the parties may need to get guidance from the Court or use practical and experienced attorneys to assist them in reaching reasonable agreements.

While the direction to the Judges is not exactly clear with these two additions, the direction to parents is quite clear.  The more involved you are in your child's life, the lower your child support will be.  While tying these two issues together can create problems when negotiating parenting plans, this was definitely on purpose.  The Task Force clearly hopes that this language results in non-custodial parents making a greater effort to be involved in their child's life.  Even if it's for the wrong reasons, children benefit from having a strong relationship with both parents in most cases.

High Income Households under the New Massachusetts Child Support Guidelines

The new Massachusetts Child Support Guidelines effective on August 1, 2013 provide more specificity for the court on how to calculate child support when the combined household income exceeds $250,000.

Under the new guidelines, the Court is still given significant discretion as to child support orders in these households but the language of the new guidelines clarifies a few key issues that had previously led to confusion over the court's presumptions and authority in these cases.

Under the old guidelines, the language read:
These guidelines are not meant to apply where the combined annual gross income of the parties exceeds $250,000. In cases where income exceeds this limit, the Court should consider the award of support at the $250,000 level as the minimum presumptive order. Additional amounts of child support may be awarded in the Court’s discretion.
Under the new guidelines, this section reads:
These guidelines are calculated up to a maximum combined available annual gross income of the parties of $250,000. In cases where combined available income is over $250,000, the guidelines should be applied on the first $250,000 in the same proportion as the Recipient’s and Payor’s actual income as provided on line 1h of the child support guidelines worksheet. In cases where income exceeds this limit, the Court should consider the award of support at the $250,000 level as the minimum presumptive order. The child support obligation for the portion of combined available income that exceeds $250,000 shall be in the discretion of the Court. (emphasis added)
While this proportional approach was suggested in the report which accompanied the 2009 Child Support Guidelines, it was not specified in the Guidelines themselves.  The new guidelines, therefore, clarify that this is the appropriate method to generate a presumptive minimum support order.

The 2013 Guidelines still do not provide guidance of how the Court should exercise it's "discretion" with the income over $250,000.  However, the new worksheet encourages Judges to consider the proportional income both parties have over the $250,000 cap, by displaying those amounts at the end of the form.  Seeing this figures will give Judges a clear picture of how much income each party has above the $250,000.

Displaying this information on every worksheet will not just assist Judges in calculating these amounts, but also highlight the difference for them.  While we can't predict exactly what Judges will do with this information, having it handy encourages them to consider what they might do with that information and will likely lead to more specific factual findings as to how Judge's are exercising their discretion on the excess income.

Monday, June 24, 2013

New Massachusetts Child Support Guidelines will Reduce Support for Many

On Thursday, June 20, 2013 Chief Justice of the Trial Court, Robert A. Mulligan, announced via Press Release the latest revisions to the Massachusetts Child Support Guidelines which will become effective on August 1, 2013.  Federal rules require that the court review the guidelines every four years, and the current guidelines were enacted in January of 2009.

The Chief Justice, with the assistance of a task force he appointed in 2012, reviewed the guidelines with the hope of "producing guidelines based on the current economic climate for families raising children in Massachusetts."

Since August 1 is pretty close, we at Kelsey & Trask, P.C. want to help everyone understand these new guidelines and how they affect current divorce, paternity and child support modification cases.  Over the next few days we will be posting multiple blogs regarding the changes these new child support guidelines will implement, and providing an updated user-friendly calculator to assist with completing the new worksheet.

For now, let's make some basic comparisons.  Below you will find a chart displaying the comparison of child support totals for 1 child vs. household income (before multiplying the child support by proportion of income).  As this chart shows, the new guidelines will result in a typical reduction of between 10 and 15% for most cases.

Because the multiplier for additional children increases in the new guidelines, as shown below, the impact of this reduction will be felt less in cases with multiple children:

Other changes to the guidelines may also suggest that child support orders should be lower or higher than the current orders.  A summary of the other changes is provided below, direct from the court's press release:

  • Income from means tested benefits such as SSI, TAFDC, and SNAP are excluded for both parties from the calculation of their support obligations.
  • Availability of employment at the attributed income level must be considered in attribution of income cases.
  • The text makes clear that all, some, or none of income from secondary jobs or overtime may be considered by the court, regardless of whether this is new income or was historically earned prior to dissolution of the relationship.
  • Reference is made to the 2011 Alimony Reform Act; the text does not, however, provide a specific formula or approach for calculating alimony and child support in cases where both may be appropriate.
  • Clarification is given as to how child support should be allocated between the parents where their combined income exceeds $250,000.
  • A new formula is provided for calculating support where parenting time and expenditures are less than equal (50/50) but more than the assumed standard split of two thirds/one third.
  • Guidance and clarification is given in the area of child support over the age of eighteen where appropriate.  While the Guidelines apply, the court may consider a child’s living arrangements and post- secondary education. Contribution to post-secondary education may be ordered after consideration of several factors set forth in the Guidelines and such contribution must be considered in setting the weekly support order, if any.
  • The standard for modification is clarified to reflect the recent Supreme Judicial Court decision in Morales v. Morales, 464 Mass. 507 (2013).
  • Circumstances justifying a deviation are expanded to include extraordinary health insurance expenses, child care costs that are disproportionate to income or when a parent is providing less than one-third parenting time.
For more information and the new worksheet visit the court's website.

Friday, June 21, 2013

Summer Lovin' Series: Unmarried Parents with a Baby on the Way!

Summer is finally here.  The air is humid, the sunblock is out, and it's finally time for vacations and school break.  But enjoying summer too much has its consequences.  Our Summer Lovin' series is about those consequences for Unmarried Parents in Massachusetts:

Summer Lovin' Series #1: Unmarried Parents with a Baby on the Way!

Unmarried parents who are separated can still plan for the baby's arrival together.  This planning should include how to pay for the expenses of the pregnancy and birth, and how to pay for the expenses of the child once he or she arrives.  In addition, for parents who are living apart, they should begin to consider a reasonable parenting plan for when the baby arrives.

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.

For babies, parenting plans must take into account the need for the child to have consistent contact with both parents in order to enable bonding.  In an attempt to recognize the different needs of children at a different ages, a committee of mental health practitioners, family law lawyers and Judges was formed. They wrote a very useful guide to shared parenting called Planning for Shared Parenting: A Guide for Parents Living Apart. 

If Unmarried Parents need help working out the details of how to plan for the baby we recommend that they consider attending counseling or mediation together.

For more information visit our webpage devoted specifically to information for unmarried parents.

Friday, June 7, 2013

Should You give your Ex-Husband a Father's Day Card?

UPDATE: There is at least one company now offering greeting cards designed specifically for ex's: https://xcardsgreetings.com/  If you don't live in the NY/NJ area you may have to order online, but if you plan ahead you could really make an impression on your ex.

Original Post:

I recently wrote about the lack of any Mother's Day cards designed specifically "For My Ex-Wife."  Of course the same is true for Father's Day.   The seasonal section is now  full of cards ranging from religious to sappy to funny (or appropriately politically correct kinda-funny).  There are cards separated into sections "For My Husband", "From Daughter", "From Son", for grandfathers and even great-grandfathers.

But there aren't any cards in the aisle labeled "For My Ex-Husband."

Why not?

One Judge in Plymouth County has a standard speech he gives divorcing spouses right before he approves their final divorce.  Judge James Menno tells divorcing spouses who are also parents: "Today I divorce you as husband and wife, but you will never be divorced as parents."  Divorced parents are still Mom and Dad, and nothing changes that.

In many cases (maybe even most cases), divorce involves a breakdown in trust between the two parties.  Co-parenting with someone with whom you don't have a trusting relationship can range from difficult to impossible.  In Collaborative Divorce and Mediation, we often focus on the ways in which couples can build communication and enough trust to co-parent effectively after their divorce is final.

One of the most powerful skills that couples can work on to build trust and cooperation is acknowledgement.

We've all heard the complaints that separated parents have about the other parent.  Parenting together is difficult enough, and parenting apart is bound to lead to even more misunderstandings.  But how often do you hear separated parents praise each other's efforts.  How different would conversations between exes be if they began with an acknowledgement of what the other parent is doing well, instead of starting in on what's wrong.  When you acknowledge someone else's strengths they are more likely to be understanding when you have disagreements, because they can trust you to see both the good and the bad.

Even in difficult cases most people will still admit that the opposing party is a good parent.  However, the absence of a Father's Day card category "For My Ex-Husband" suggests that very few ex-wives make a point of telling their ex-husband that they're a good father, even on the day that is specifically designed for that.

So while we wait for greeting card companies to figure this out, buy your ex-husband a tie or a tool or a generic Father's Day card.  Even a cliched Father's Day gift will make a big impression because even though you're not married anymore he is still a Dad, and that deserves recognition.

Wednesday, June 5, 2013

What can Beer teach us about Hiring a Lawyer?

Last Friday, May 31, 2013, I attended the American Craft Beer Festival at the Seaport World Trade Center in Boston.  It included more than 140 brewers providing samples of over 600 different beers.  I would not call myself a connoisseur of beer and went primarily because of the interest of a friend.  However, when I considered how I would rate the various beers that I sampled, I discovered that some clearly stood well above the others.

Before I attended ACBF, I knew that all beers were not created equal, but I would not have gone out of my way to find a particular beer.  What I learned at the ACBF, though, is that some beers are truly worth going out of your way to find.  Specifically my favorites were Lunch from the Maine Beer Company and Koko Brown from the Kona Brewing Company.

So now that I've whet your appetite for a good beer, let me explain why I think there is actually a lesson in my experience that can help you hire a lawyer.

By now most people know that there are a lot of lawyers out there, and that they are not all equal in service, price, or knowledge.  Despite their awareness of this disparity many people still hire the first lawyer they interview.  Usually when going to a lawyer's office it is for some event that makes people feel vulnerable.  This is especially true in a divorce case, and just the act of meeting with a lawyer and explaining the circumstances surrounding the breakup of a marriage can be stressful and scary.  Most clients don't want do have that meeting more than once, and as long as the first lawyer they meet with is even remotely competent, they're hired.

But did you hear all your options?  Did you choose the best option for you?  And did you find a lawyer that fits your personality and values?  If you didn't, you'll probably be unhappy with the result in your case or end up hiring another lawyer.  Either way you won't feel like the money you spent was worth it.

So what should you look for when hiring an attorney?

1. TRY A SAMPLE:  Don't be afraid to interview multiple lawyers.  Many will offer free or reduced fee initial consultations or even low-cost meetings compared to their regular rates.  Just like my experience sampling beer, you might be surprised by how different your experience with different lawyers might be.

2. COMPARE SAMPLES:  If you interview multiple lawyers then you have the opportunity to compare how they addressed your concerns.  Did the lawyer give you a one-size-fits all speech or did they address the specific issues in your case.  If you only tried light beer, would you even know that there were better options out there?  Many people probably end up hating lawyers because they never took the time to find a good one.  Now is your best chance to see what else is out there.

3. KNOW YOUR OPTIONS:  Different lawyers practice differently. This is especially true in the area of family law and divorce.  Some lawyers prefer to litigate issues and let the Judge decide, and others work hard to settle outside of court.  Rule 5 of the Supreme Judicial Court Uniform Rules on Dispute Resolution (SJC Rule 1:18) requires lawyers to explain that there are other options besides going to court to resolve disputes.  Did you hear about all of these options?  If a lawyer doesn't practice Collaborative Divorce or Mediation, they may not give you much information on these options, but you aren't making an informed decision about your case without knowing the truth about these options.

4. DO YOUR HOMEWORK:  I don't make any hiring decisions without looking at someone's website.  What image do they project to the world?  Is it professional?  Is it consistent with your values and how you want your case handled?

5. CHOOSE SOMEONE YOU TRUST: Did you feel heard?  If you didn't communicate well with the lawyer in the interview, don't expect that to change when your case starts.  You need to find a lawyer that listens to and understands your goals, and can explain effectively to you how they intend to achieve those goals.  Cost should be a factor, but it is only one factor, because if you choose someone you can't work well with you will end up paying for a second lawyer too.

Sometimes you have to pay a little extra when you find that good beer, but if you really compare it to what else is out there, you will realize it's worth it.

Wednesday, May 29, 2013

Can I get Divorced in Massachusetts if I was married in another country?

Assuming you are a resident of Massachusetts for 1 year, or you meet one of the other jurisdictional requirements to have your case heard in Massachusetts, the fact that your marriage was solemnized in another country will not usually make a difference.

With a few exceptions (such as going to a foreign jurisdiction to get married when you wouldn't be considered competent in MA), a foreign marriage is recognized as a legal marriage in MA so long as it is recognized as a legal marriage in the country of the marriage.  Under M.G.L. c. 207 s 36 you can file a foreign marriage certificate with your town clerk to have it recorded, if you want vital records to have a record of your marriage.

However, that usually isn't necessary in order to file a divorce.  You just have to file an original or a certified copy of the marriage certificate with the Complaint for Divorce.  If the original or certified copy is not in English then I would also recommend having a certified translation.

If you only have a copy of the marriage certificate with a certification or seal, you will need to obtain a certified copy of the certificate.  A regular copy won't be sufficient to obtain a divorce.  If you don't know anyone in the originating country that can contact a local clerk for you, then I would suggest starting with the embassy for that country to find out the best way to obtain a certified copy.

It may take a few weeks to get a certified copy, but if you need temporary orders due to some immediate concern then you may be able to get a Judge to allow your case to open by filing a Motion to Allow Filing of Certified Copy Late.  In the Motion you would explain why you need to be heard now, but can't obtain the certified copy right away.  If you convince a Judge that you are doing everything in your power to obtain the certified copy and will file it upon receipt, then the Judge may be willing to allow the divorce case to open and issue temporary orders.  Until the certified copy is filed, though, a Judge won't issue a final Judgment of Divorce.

Wednesday, May 15, 2013

Can a parent visit their children if there is a restraining order protecting the other parent?

In a recent Supreme Court decision, Moreno vs. Naranjo, SJC-11070 (2013) , the SJC dismissed an appeal as moot for a 209A order that had expired, but addressed the underlying issue anyway in order to provide guidance to District Court judges.  In Moreno the District Court judge had considered the impact of the order on visitation and had ordered a 6 month order instead of 1 year because of the likely impact of the order on the relationship between the defendant and the child.  The SJC indicated that this consideration was improper.

In deciding the length of an order, the only consideration should be the "time reasonably necessary to protect from abuse the plaintiff or any child in the plaintiff's care or custody."   This doesn't mean that an order can't include provisions for visitation, but only that the impact the order has on visitation shouldn't affect the choice to issue the order or for how long.  That choice is dependent solely on the necessity of the order to provide protection from abuse to the plaintiff.

When a restraining order, also know in Massachusetts as a section 209A Abuse Prevention Order, is obtained by a Plaintiff, it will include orders relating to children if the parties have minor children together.  Usually a 209A restraining order will order the Defendant to stay away from any children and award custody of the children to the Plaintiff.

In Massachusetts, the District Court issues most 209A restraining orders but the Probate & Family Court can as well.  Provisions relating to minor children can be amended to allow visitation, but typically the District Court would prefer that the Probate & Family Court deal with those provisions.  If a party requests a parenting time schedule from the Probate & Family Court, the Judge in that court can amend the restraining order through a process we discussed in this previous post.

The provisions relating to visiting the children don't change the orders preventing abuse of the parent, but practical considerations (like pick-up and drop-off of the children) may need to be considered to avoid violation of no-contact provisions.

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