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Showing posts from 2014

6 Lessons on Alimony Modification from the Appeals Court

The Massachusetts Appeals Court released a decision on December 30, 2014,   Vedensky v. Vedensky  (13-P-1392), deciding numerous issues related to the determination of alimony on a modification.  The Appeals Court upheld most of the lower court's decision except on one issue, including the payor's second job income, which caused the award to be remanded to the lower court.  This continues a trend in recent alimony cases for the Appeals Court and SJC to look very closely at awards of alimony under the still relatively new Alimony Reform Act . In Vedensky, the wife and husband entered into a Separation Agreement in 2007 that included the husband paying child support to the wife and no present alimony, but the issue of future alimony was left modifiable.  After suffering from psychological disabilities that affected his ability to work, the husband sought a reduction of his child support in 2009 on a Complaint for Modification, which obligation was terminated in a 2010 judgmen

A Chance to Share your Divorce Experience: “…AND I JUST WANTED YOU TO KNOW”

A colleague shared with us her idea for writing a book on divorce comprised of actual letters written by ex-spouses to their former partners.  Recently one such letter went viral and another colleague of ours pointed out the wisdom that could be gained from this type of correspondence . We think this type of a collection has great potential for informing both divorcing spouses and the professionals that assist them, and we want to support Vicki Shemin, J.D., LICSW, ACSW, of the Boston Law Collaborative , in her efforts.  If you are divorced, or know someone who is, please consider responding to the below inquiry or passing it on to those who may be interested: “…AND I JUST WANTED YOU TO KNOW” Dear Prospective Book Participant: I write to invite you to participate in a unique educational opportunity.  I am writing a book that will be a collection of actual letters to ex-spouses from individuals such as yourself.  These are not necessarily copies of letters that were ever sent

What is Conciliation? How is it different than Mediation?

In a Conciliation a neutral private attorney, sometimes appointed by the court, assists parties in assessing the strengths and weaknesses of their case and exploring options for resolving the matter without going to trial.  Conciliation is similar to mediation  in that the two parties are working with a neutral person who is attempting to help them reach an agreement. However there are some key differences: If attorneys are involved in the case, they are usually present for conciliation. Often attorneys don't participate in a mediation. Conciliators can, and often will, provide an opinion or assessment of each party's arguments.  While this may assist the parties in settling, it is different than mediation where the neutral avoids making assessments which could favor one party or the other. While a mediator can be a mental health practitioner, financial expert or other non-attorney professional, a conciliator is an attorney because of the legal experience necessary to prov

Court Awards Custody to Abusive Father. Still Think Court is Safer than Mediation?

The Massachusetts Appeals Court published a decision today in a particularly saddening and difficult divorce case in which the lower court awarded custody to a father despite a finding that the father had been physically abusive to the mother.  The job of a trial Judge is not an enviable one and I don't intend to second-guess the decision which included weighing the testimony of two experts and was very fact specific. In reading the full decision it is obvious the court was forced to choose between two extremely undesirable results. The trial court relied on the children's problems with their mother and abuse between them and her in awarding primary custody to the father.  The Appeals Court points out that the GAL and children's therapists could not find any evidence that the father brainwashed or alienated the children from the mother.  However, the court acknowledged that the children witnessed abuse by the father against the mother, and pointed out the harm suffered b

Appellate Questions on Alimony Termination – You Decide!

UPDATE: The SJC decided all three of these cases on 1/30/2015.  Our post regarding the decisions can be read here:  Lifetime Alimony is Back (for some)! - Chin v. Merriot Original Post: There are three appeals pending before the Massachusetts SJC which will significantly impact how the Alimony Reform Act of 2011  is interpreted by the courts.  All three cases have to do with whether the parts of the Act can apply when modifying Judgments or Agreements entered prior to the Act’s effective date (March 1, 2012).  Each case deals with a slightly different component of this issue: Doktor v. Doktor (SJC-11727) presents the question of whether the Act's provision regarding termination of general term alimony upon full retirement age (see M.G. L. c. 208, § 49f ) applies to a divorce judgment that predates the Act, where the payor reaches retirement age after the effective date of the Act.  In addition, the case should address whether, and how, the parties' respective assets sho

3 Things that Mediation is NOT

Mediation has become a popular alternative to court proceedings, with mediators resolving disputes of all kinds ranging from private family matters to the very public NFL lockout .  But there is still a significant amount of confusion about what is mediation and what can a mediator do for you.  Some of the most common misconceptions follow: 1. Mediation is NOT Arbitration! Many people assume that the purpose of a mediation is to have a trained third party help them make decisions by choosing a solution when they can't agree, and this misconception has been popularized by shows like Untying the Knot .  Bravo TV's show about a New Jersey divorce attorney and mediator, Vikki Ziegler, follows one issue (usually property division) through brief evaluation and "recommendation" sessions. In order to be able to fit the resolution of an issue into a half hour of drama, the show has a formula based on Vikki pushing the spouses to settle their disputes by making a "

Collaborative Law is Growing!

If you follow our posts at all you're probably aware that attorney Justin Kelsey is a Collaboratively trained Divorce attorney and Mediator.  But did you also know that three other attorneys at Kelsey & Trask, P.C. are Collaboratively trained as well? Full time Associate, Valerie Kua , and of counsel   Jonathan Eaton  have both taken the Collaborative Training and regularly use those skills in their family law practice to settle both Collaborative and cooperative cases (if you don't know the difference click here ).  In addition, of counsel to Kelsey & Trask, P.C., Beth Aarons  is a trained Collaborative attorney who practices in both family law and estate planning & probate. At Kelsey & Trask, P.C. we strongly believe that Collaborative Law is the future of dispute settlement, and not just in divorce cases.  For example, if you have an estate planning or probate dispute, you may want to consider Collaboratively trained counsel as well.   Even other civil m

Divorce Support Groups in Massachusetts

Going through a divorce is the second most stressful life event next to the passing of a loved one. When a loved one dies, we have numerous traditions and rituals that ensure that we have support to help us grieve.  In contrast, divorce is too often experienced alone.  While we encourage our divorce clients to seek support of friends, family and therapists, that doesn't work for everyone.  Sometimes friends and family don't understand, and therapy isn't the answer for everyone. When some options don't work, that doesn't necessarily mean that you have to go through your divorce alone.  It is important to realize that other people are experiencing the loss of divorce as well and in some cases sharing that experience can be useful.  Divorce Support Groups are one way to find that support and there are options for both women and men: Divorce Support Groups for Women:  http://oonametz.com/ Divorce Support Groups for Men:  http://cambridgemindbody.com/couples-c

Why Aren't You Getting Collaborative Cases?

There are many reasons that there are currently fewer Collaborative cases than there are mediation and litigation cases.  Just to name a few of the challenges: the process is newer and less well known to the general public; there is still confusion about the cost and benefits of the process; and there aren't as many practitioners trained in the process as there are in mediation (and no additional training is "required" to go to court).  Collaborative Law, like mediation, requires that both parties choose the process.  If one party wants to go to court then the other essentially has no choice.   There are many seminars on informing the reluctant opponent, and about educating other professionals regarding Collaborative Law and hopefully these strategies will help more cases resolve amicably. However, there will always be some cases where one side chooses to hire an attorney who believes litigation is the best route, or at the very least is not willing to be disqualified

MA SJC Rules on Parent Coordinator Orders: Asks Probate Court to make a Rule

In the case of Bower v. Bournay-Bower , the Massachusetts Supreme Judicial Court has ruled that Judges in the Probate and Family Court cannot grant a Parent Coordinator  binding authority over the objection of one of the parties.  However, the SJC went much further then necessary in order to open the door for what might be the "appropriate circumstances" to order a Parent Coordinator. In Bower , the SJC summarized the trial judge's order as requiring a parent coordinator to: "hear the parties' current and future disputes regarding custody and visitation in the first instance, before the parties could file any action regarding these disputes in court. The order also granted the parent coordinator the authority to make binding decisions on matters of custody and visitation and provided that these decisions must be complied with by the parties as if they were court orders unless one of the parties were to go to the court before the decision was to take effect

Collaborative Law Intro Training 2014

Kelsey & Trask's Justin Kelsey will be one of the presenters at the upcoming 2014 Collaborative Law Training: presents an Introduction to Collaborative Law Practice 2014: An Interdisciplinary, Interactive, Step-by-Step Training  to Offer A Better Approach to Conflict Resolution. This is a three day introductory training taking place on September 11, 12 & 13, 2014  which will proceed step-by-step through the collaborative process. The program is designed for social workers, psychologists, and other licensed mental health professionals, financial professionals, family law attorneys and civil law practitioners. This training meets the International Academy of Collaborative Professionals (IACP) standards for trainers and interdisciplinary training. FIND OUT MORE or REGISTER HERE!

A Lecture in Myanmar

For 9 days this past July, Valerie Kua, an associate at Kelsey & Trask, P.C., had the opportunity  to visit the Republic of the Union of Myanmar (formerly Burma) through the Seed of Hope Foundation .  As part of this visit, on Friday, July 18, Valerie presented a lecture on the American legal system at the University of Mawlamyine. Myanmar is the second largest country in Southeast Asia bordering Laos, Thailand, China, Bangladesh and India.  Then known as Burma, Myanmar became an independent nation in 1948 and has spent much of that time in civil war.  Today Myanmar is one of the poorest countries in Southeast Asia, though the recent lifting of economic sanctions has given the country new opportunities for growth. The University of Mawlamyine is the third largest university in the country, with approximately 8,000 undergraduates.  Two hundred University professors, lecturers and students attended Valerie's Introduction to the American Legal System lecture, where she expla

Rehabilitative Alimony: 7 More Lessons from the SJC

The Massachusetts Supreme Judicial Court has released another opinion that addresses some of the questions still surrounding the Alimony Reform Act of 2011. Zaleski v. Zaleski - SJC 11391 (2014). In Zaleski, the Appeals Court addressed four primary issues in the lower court's decision: Rehabilitative Alimony ordered instead of General Term Alimony - AFFIRMED Husband's bonus income not included in alimony amount calculation - REMANDED Wife ordered to maintain life insurance for her child related obligations - REMANDED Property Division not exactly equal - AFFIRMED We've summarized the take-away points from this decision: 1. Trial Judges have even more DISCRETION now Footnote 13 confirms what many practitioners have been saying about the new Act:   "The legislative history clearly shows that the broad discretion judges historically have had in making awards of alimony was not affected by the Alimony Reform Act of 2011, St. 2011, c. 124 (alimony

Can Alimony continue past Retirement in Massachusetts under the new law?

Part of the significant ground-swell of support for a change to Massachusetts alimony laws came after the  Pierce decision , which ordered alimony to continue past retirement.  While a quick reading of the new alimony statute might lead you to believe otherwise, there are a number of scenarios in which alimony could (and in many cases will) still continue past retirement age. The Alimony Reform Act of 2011, which became effective on March 1, 2012 provides for multiple types of alimony, and for maximum amounts and duration of alimony.  Any alimony orders that were in effect prior to March 1, 2012 will be considered General Term Alimony, and the Act included duration limits for General Term Alimony that we described at length in a previous post. One of the limitations on duration is contained in M.G.L. c. 208 s 49(f)  and indicates that the court SHALL terminate alimony "upon the payor attaining the full retirement age."  Full retirement age is defined as when he or she is

Can the Court order less than the 30-35% formula for Alimony in Massachusetts?

The Alimony Reform Act of 2011 added a formula to Massachusetts Alimony determinations: "Except for reimbursement alimony or circumstances warranting deviation for other forms of alimony, the amount of alimony should generally not exceed the recipient’s need or 30 to 35 per cent of the difference between the parties’ gross incomes established at the time of the order being issued. Subject to subsection (c), income shall be defined as set forth in the Massachusetts child support guidelines." M.G.L. c. 208 s 53(b)  (emphasis added) Mathematical formulas are convenient and many practitioners and Judges are running the formula right away to see what the boundaries of alimony are (we've even encouraged this behavior with the creation of a website calculator and iPhone App ).  But the recent decision in  Hassey  indicates that the formula should not be the first step in the alimony inquiry. The formula should not be the first step in the alimony inquiry.   When ru

Middlesex Pilot Program: Fast-Lane Informal Estate Petitions

from Wikipedia The Middlesex Probate & Family Court already has a very successful and convenient "Fast Lane" program for so-called uncontested divorce petitions (Section 1A Joint Petitions for Divorce).  It saves time for both the courts and the parties to be able to walk an uncontested matter in to the courthouse and, if all of their paperwork is in order, be heard the same day. According to a press release dated July 9, 2014 ( available here ), the Court will now be expanding this type of procedure to include Informal Estate Administration Petitions: "Tara E. DeCristofaro, Register of the Middlesex Probate and Family Court, has announced that she will be piloting a walk-in session for informal petitions. The walk-in session will be available in the Registry every Tuesday afternoon from 12:00 pm. - 3:00 pm., beginning August 5, 2014. If the program is well received, plans are to expand it to multiple days per week." As with joint petition divorce walk-

New Divorce Calculator Apps for Massachusetts

Kelsey & Trask, P.C. was the first to have an iPhone App for calculating Child Support in Massachusetts  and we've recently updated it with a new look .  In addition we are now introducing two new iPhone applications: The Massachusetts Alimony App : Use this worksheet to calculate the maximum amount and duration of alimony in Massachusetts based on the Alimony Reform Act which took effect on March 1, 2012.  The App allows you to save your calculations or e-mail them.    Massachusetts Divorce Calculators App:  Includes the following 4 calculators necessary to determine family support in Massachusetts: Massachusetts Child Support Calculator, Massachusetts Alimony Calculator, Full Retirement Age Calculator, and Alimony Recapture Calculator. The Massachusetts Child Support Calculator is the same one contained in our Child Support App and the Massachusetts Alimony Calculator is the same one contained in our Mass Alimony App :    The two additional calculators rel

Alimony & Property Division: 7 Lessons from the Appeals Court

The Alimony Reform Act of 2011  took effect on March 1, 2012 and significantly changed the law in Massachusetts relating to awards of alimony. Today, the Massachusetts Appeals Court released an opinion that addresses some of the questions still surrounding the Act.  Hassey v. Hassey,  No. 13-P-864 (2014,  available for download here ). In Hassey , the Appeals Court addressed four primary issues in the lower court's decision: Base Alimony of $8,500 per month - VACATED Self-Modifying Alimony of 30% of Husband's gross income in excess of $250,000 - VACATED Termination of Alimony on ""retirement as defined in the Act Reforming Alimony of 2011, as it may be amended." - REMANDED FOR AMBIGUITY Exclusion of Wife's inherited interest in vacation home from marital estate - VACATED We've summarized the take-away points from this decision: 1. The Basic Definition of Alimony and its Purpose HAS NOT CHANGED While there are numerous provisions deali

Lifestyle During Separation Does Not Define Marital Lifestyle, According to Massachusetts Appeals Court

Guest Post from Jonathan R. Eaton, Esq. of Finn & Eaton, P.C.  and of counsel to Kelsey & Trask, P.C.   - Attorney Eaton focuses his practice on family law, serving clients in the areas of divorce law, child custody & visitation disputes, modifications of existing judgments in the Probate & Family Courts, drafting and negotiating prenuptial agreements, and guardianships & conservatorships.  Jonathan is also trained in Collaborative Law. Lifestyle During Separation Does Not Define Marital Lifestyle,  According to Massachusetts Appeals Court In setting the amount of alimony to be paid, and how long it is to be paid, a Probate & Family Court judge in Massachusetts must consider twelve mandatory factors: "In determining the appropriate form of alimony and in setting the amount and duration of support, a court shall consider: the length of the marriage; age of the parties; health of the parties; income, employment and employability of both parties, i

Divorce Mediation Infographic

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

Starting the Divorce Process: Part 3 - What is the Best Way to get Divorced?

In our previous post , we explored the problem with the way that most resources (including the court's own website) answer the question "How do I start the divorce process?"  Most resources answer this question by telling you which court forms you can file.   However, the court forms don't determine how to divide your finances, or where your children will live.  The court forms only determine whether you will make those decisions for yourself or ask a Judge to make them for you. Before you decide what forms to file, you need to make a decision about what level of control you want over your own divorce process and major life decisions.  If you have children, you also need to consider your communication and relationship goals for co-parenting post-divorce, and which divorce process will best help you meet those goals.  Each different process offers different levels of assistance from various types of professionals.  Which option is right for you depends on how much he