Tuesday, December 30, 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 judgment.  Then in 2011, the husband filed a new Complaint for Modification seeking alimony.  The lower court ordered $635 per week in rehabilitative alimony for 104 weeks.  The Appeals Court overturned the decision.

Here are some of the lessons that can be taken from the Vedensky decision:

1. The first modification proceeding regarding child support doesn't reset the clock on modification.

The wife argued that the lower court should have considered the change in circumstances from the first modification in 2010 and not from the divorce judgment in 2007.  The Appeals Court disagreed indicating that parties "are not required to pair every complaint for modification of child support with an alimony request."  That incentive would clearly be against public policy.

2.  Judges are given great discretion in evaluating expert testimony.

The wife argued that the lower court erred by failing to consider expert testimony regarding the husband's ability to work.  The Appeals Court however gave great deference to the weight given by the lower court to the expert testimony and how it related to the husband's disability.

3. The Judge can use SSI disqualification regulations to determine earning capacity.

The wife argued that the lower court erred in how it determined the husband's earning capacity by relying on the disability disqualification regulations for SSI and indicating that the husband could earn up to that amount.   According to the Appeals Court this was not error and it was consistent with the lower court's order that the husband undergo therapy, which was intended to increase the likelihood of a return to full-time work.

4.  Clear findings by a Judge can support an award that exceeds current need.

The wife argued that the lower court erred by awarding the husband alimony above his needs.  The lower court specifically outlined that the increase above his stated need was for the anticipated cost of treatment, which was necessary to comply with the court's order.  The Appeals Court reiterated the considerable discretion given to the lower court, especially when the award "flowed rationally from the findings and rulings."

5. There is a Presumption against including a new second job in an alimony modification.

According to the Appeals Court neither party addressed the statutory provision related to second job income (Section 54b) in their appellate briefs, but the issue so concerned the Appeals Court that they asked for post-argument submissions on the issue.  The Appeals Court considered the issue important enough to raise on their own because of the specific statutory reference in Section 54b:
"[i]ncome from a second job or overtime work shall be presumed immaterial to alimony modification if: (1) a party works more than a single full-time equivalent position; and (2) the second job or overtime began after entry of the initial order." 
Since the wife took a second job only after the entry of a judgment of divorce "the presumption of immateriality applies to income earned from her second job."  The Appeals Court therefore overturned the alimony award and remanded the issue to the lower to make findings relating to this issue and a new award of alimony taking into account this presumption.  The Appeals Court points out that the presumption may be rebutted if there are sufficient findings in the lower court, which unfortunately for the parties will likely require a further evidentiary hearing.

6.  It only takes one issue for a decision to be overturned on appeal.

In Vadensky the lower court did almost everything right according to the Appeals Court, and the parties failed to raise the second job issue to the Appeals Court.  Despite all of that, it only took this one oversight and a thorough appellate review to return these parties back to square one.  This is a downside of litigation that is seldom discussed with parties at the beginning of a case.  The only sure way to avoid further litigation is to reach a settlement.  Even winning at the trial level can be overturned by the appellate division.

Given how lengthy this modification process has already been for the parties, we hope they are encouraged to consider mediation as an option before returning to the lower court for another round of litigation.

Visit our main page for more information about mediation or alimony.

Monday, December 29, 2014

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:


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 to your ex-spouse, but are more likely to be letters you would be writing now - for the first time (which you may choose never to send), expressing to your ex-spouse what you “just wanted them to know” as you reflect back upon your marriage, divorce, and all that has followed.

My hope is that engaging in the actual introspection and writing of this anonymous letter will not only prove cathartic to you, but will serve as a tremendous contribution to the professions of psychology, law, theology and medicine - as therapists, family lawyers, clergy and psychiatrists have much to learn from the vantage point of your experience.

There is no page length, no direction you “should” take – other than to write from the heart. Although the letters will be published anonymously, it is impossible to guarantee that someone will not recognize your letter or claim to recognize your letter; therefore, you may wish to modify certain distinguishing factors (e.g., any  geographical locales identified; any names used or professions referenced; or, number/gender of any children mentioned). That said, I am requesting that, along with your letter, you complete a survey: for purposes of the survey, please be 100% accurate and honest in your responses since this part of the book will be used for educational purposes.  More specifically, I intend to subcategorize the letters into various chapters based on interesting variables such as how long couples had been married, whether they had children together, and whether either ex-spouse subsequently remarried.

Here is how to proceed:

1.         Please note that all letters MUST start the same way:  “…and I just wanted you to know”

2.         Please feel free to write your letter on any stationery or via any medium you prefer (be it handwritten, via email, fax, etc.)

3.         Please complete the SurveyMonkey survey found here.

4.         Here is the tricky part:  I need to be able to connect your “surveymonkey” responses to your letter!

a.  Take the surveymonkey online and then simply print out the completed survey and transmit it to me - along with your letter - via email, fax or U.S. mail.

b.  If you are unable to print out a copy of the survey to return with your letter, then when you send me your letter, please tell me the exact time and date you transmitted the surveymonkey and tell me some “identifying” information about one of your survey answers that will help me connect your letter and the survey.  [For example: “Vicki - I sent you the surveymonkey on December 21, 2014 at 8:42 p.m. and replied in #10 of the survey that ‘my ex-spouse is a wonderful woman who loved her job more than she ever could have loved me.’ ”]

c.  Here is how to get BOTH the LETTER & THE SURVEY back to me (via email, fax, or U.S. mail):

Vicki L. Shemin, J.D., LICSW, ACSW
c/o Boston Law Collaborative, LLC
99 Summer Street, Suite 1600
Boston, MA 02110
Tel: (617) 439-4700 ext. 210
Fax: (617) 439-0700

* Please remember: If you do not send both your letter and survey to me together, then please let me know via separate communication that your letter and your survey are uniquely linked by some identifying information so that I can connect them for research purposes.  Please feel free to let me know if you have any questions or concerns.



Monday, November 17, 2014

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 provide an assessment.
  • Conciliation usually takes place while a litigation case is pending, while most people seek mediation before litigation begins (although mediation can be used during litigation as well).
  • Finally, conciliators may be required to report back to the court if appointed by the court, while mediation is completely confidential and privileged.
Many of the Massachusetts Probate & Family Courts have conciliation programs in which the court will appoint a free conciliator to work with the parties at their request. In those programs, the conciliator agrees to provide a minimum of two hours and tries to assist the parties in settling without a cost. This Court appointed conciliation requires a report to be filed with the court.

Attorney Justin Kelsey has taken the conciliation training and can be appointed through the court in Norfolk and Middlesex counties as your free conciliator or you can choose to hire Attorney Kelsey directly. By paying for the conciliation you receive some additional benefits. Your time is not limited as with the court program, and we can work on your case until it settles. In addition, we will work around your schedule to accommodate you and your attorneys. Finally, you get to choose your neutral professional by reputation instead of being randomly assigned the next conciliator on the list.

Click here to learn more about mediation and conciliation offered by Kelsey & Trask P.C.

Friday, October 31, 2014

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 by those who witness domestic violence.

The court's decision and these principles seem incompatible.  Unfortunately though, it is obvious that no matter the decision made by the court it would have been an imperfect one.  It is possible that the children will be in danger of witnessing or being involved in further domestic violence regardless of which parent was awarded custody.  Not only did the court process fail to ensure the protection of these children, the stress and animosity created by the process probably increased the risk.

Sometimes the court just can't solve these types of problems effectively.  The mother in this case most likely spent a fortune to have a parent alienation expert testify for no benefit.  What if the mother had engaged that expert for a different purpose?  What if the mother had engaged that expert to help her fix her broken relationship with her children, regardless of the cause?  What if these parties had tried mediation or collaborative law instead of litigation?  

While it is important that the court exists as a last resort for obtaining protection for victims of domestic violence, this case is the perfect example of how the court only has imperfect solutions to offer families.  It is my hope that rather than continue to litigate after receiving this Appeals decision the family in K.A. v. T.R., and others like them seek the help of experts (divorce coaches, parent reunification experts, mediators, etc.) to help them seek solutions that are better than what the system has offered them.

October is Domestic Violence Awareness Month and it is ironic that on the last day of October this decision is published.  Victims of domestic violence need to be aware of the resources available to them such as the Domestic Violence / Sexual Assault Agencies and Hotlines in Massachusetts.  In addition, Awareness should include knowledge about the options that victims have besides court, options which ultimately might serve their and their children's needs better.  If you doubt that mediation or collaborative law could have done better in this case, I invite you to read the entire decision in K.A. v. T.R. and comment below.

Tuesday, October 28, 2014

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 should be considered in determining the continuing need for, and ability to pay, alimony after retirement.  If the Act's termination on retirement clause applies to this Judgment, then the lower court erred in dismissing the husband's Complaint for Modification of alimony due to his retirement.  Oral Arguments, which occurred on October 6, 2014, can be seen here.

Rodman v. Rodman (SJC-11726) presents the question of whether the provision of the Act 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.  If the Act's termination on retirement clause applies to this Judgment, then the lower court shall consider the husband's Complaint for Modification of alimony due to his retirement.  Oral Arguments, which occurred on October 6, 2014, can be seen here.

Chin v. Merriot (SJC-11715) presents the question of whether  the provision of the Act regarding suspension, reduction, and termination of general term alimony based on a recipient spouse's cohabitation with another (see M.G. L. c. 208, § 49d) applies to a divorce judgment that predates the act, where the cohabitation began before the effective date of the Act and continues after the Act became effective.  In addition, the case also asks whether the provision of the act concerning the termination of general term alimony upon full retirement age applies to a divorce judgment that predates the Act, where the payor reaches retirement age after the effective date of the Act. If the Act's termination on retirement clause or cohabitation clause applies to this Judgment, then the lower court erred in dismissing the husband's Complaint for Modification of alimony. Oral Arguments, which occurred on October 6, 2014, can be seen here.

The intent of the Act, according to Steve Hitner of Mass Alimony Reform was to apply retroactively as the plaintiff's in these actions are trying to do.  He was on the Task Force so he should know.  However, others have argued that the strict language of the statute requires exactly the opposite.

I think that the statutory construction question is whether the term "durational limits" includes only the duration limits in section 49(b) or also includes the termination language in section 49(f) and 49(d).  While both sides (as is typical in litigation) argue that there view is obviously correct, the reality is that there was an unfortunate ambiguity left in the way the statute was drafted.  If it referred directly to the sections by letter, there would be no ambiguity.

While it ultimately only matters what the SJC thinks, we would like to know your opinion.  Vote below and we’ll report back when the SJC casts their (more official) vote:

Should the Act's termination of general term alimony for a payor who reaches full retirement age apply to Judgments and Agreements entered prior to the Act's effective date:

Should the Act's reduction or termination of general term alimony for sharing of a common household apply to Judgments and Agreements entered prior to the Act's effective date:

Wednesday, October 15, 2014

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 "recommendation" that often sounds much more forceful:  in one of the previews, Vikki tells the husband to "zip your mouth and shake her hand."  While this might result in settlements in many cases, the formula for this show is much more akin to arbitration or case evaluation than mediation.

When we are involved in an argument or a conflict there is an understandable tendency to want to win, or to be vindicated as the one who is "right".  If we can't convince the other side that we're right and they're wrong, then we want someone else to make the decision.  If you go to court to resolve a dispute and are unable to reach a settlement, the judge (or in some cases a jury) will be that someone.  If you hire an arbitrator then they will make the decision instead of a judge, but mediation is something different.

Mediation is about having help to make the decision together, instead of the mediator making the decision for you.  That may sound harder than letting someone else decide but it is usually much more rewarding, especially in divorce cases.  Even a trained professional is never going to know as much about your life and your goals as you do.  Why let them decide?

2. Mediation is NOT one attorney for two people!

Many people choose mediation because they want the advice of an attorney but don't want to pay for two attorneys.  While a mediator who is also an attorney can provide you with legal information, they cannot advise each of you individually.  This is an important, and sometimes complicated distinction.

The reason a mediator can't give you legal advice, is because the mediator doesn't represent you or the other party, nor does a mediator represent both of you. It is not ethical or practical for an attorney to represent both parties in a case. In fact, Rule 1.7 of the Massachusetts Rules of Professional Conduct prohibits an attorney from representing a client if that representation will be directly adverse to another client.

It is not reasonable to believe that an attorney can represent two adverse clients at the same time in the same action and look out for both of their interests. It is possible to have an attorney act as a mediator but in that case the attorney does not represent either party and is not looking out for either of your individual interests as an advocate would. Instead, the role of a mediator is to assist the two parties in reaching an agreement that they are both satisfied with, regardless of whether that agreement in the opinion of the mediator might favor one party or the other.  That is why many people in mediation will consult with their own attorney, at least briefly, at some point in the mediation process so they have the opportunity for individual advice as well.

3. Mediation is NOT Meditation!

Okay, I know this one seems obvious but in a world where search engines control the flow of information, there are still some people who think meditation and mediation are the same thing.  If you search for iPhone apps relating to mediation, you receive mostly meditation apps.  In addition, mediation and meditation do have some things in common.  Mediation involves listening and channeling your goals before making decisions.  Also mediating a dispute is more likely to lead to enlightenment and relaxation than letting someone else decide for you.

So if you're looking for a way to resolve your dispute that is more self-aware, then mediation might be for you, even though it's not meditation.

If you want to learn more about mediation click here, or contact Attorney Justin Kelsey.

Thursday, October 9, 2014

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 matters, such as business disputes, can be resolved through the Collaborative process or using Collaborative skills.

If you want to learn more, we encourage you to join attorney Matthew Trask in attending the upcoming MCLC Training on Resolving Business Disputes by Collaborative Law:


Business disputes are bad for the bottom line, whether they involve breakups, exit plans, family issues or garden variety commercial disputes.  The good news is that there is a way to deal with these problems that does not involve the expense, delay and emotional stress of litigation.  If you are interested in exploring about a new way to deal with business disputes, one that has proven effective in other areas of the law, this training is for you - whether you are already a collaborative practitioner, are a lawyer who wants to add collaborative skills to your resume, or are simply a business owner, CPA or business advisor who wants to know more.

This is a 3.5 hour training taking place on Friday, December 12, 2014 from 1:00 pm to 4:30 pm in Woburn, MA.

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/

Wednesday, September 24, 2014

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 if the case goes to litigation.  When that happens, should we fight fire with fire?  Do we, as Collaborative professionals, give up and accept that this is just another non-collaborative case?  Or even more drastic, do we give up the case because we don't want to litigate?

If you're thinking that you don't have a choice, you're wrong!  Your clients have a choice, and so do you. You may not see the choice yet, because like so many of our clients, when it comes to our own lives and our own businesses we can't see all the options without help.

For starters let's try to learn from the advice we give our clients:  

You do not control the actions of other people, 
but you do control your own actions and reactions.  

One of the strengths of the Collaborative process is in challenging the clients to identify their goals before looking for solutions.  Well, what happens if we apply that same process to this problem.  

Is the problem really that you aren't getting cases?  Or is the idea of getting more Collaborative cases actually your proposed solution to an unidentified problem.  Instead of trying to jump to a solution, let's try to identify your goals first.  What are the goals that you have as a professional that lead you to want more Collaborative cases?

For me, I had four goals in providing Collaborative as an option to my clients:
  1. Enjoy my work more;
  2. Have happier and more satisfied clients;
  3. Leave divorcing parents in a better position to communicate about their children, and thereby help more children feel like they still have a family;
  4. Get paid for the work I perform.
I believe that having more Collaborative cases will help me accomplish these goals because:
  1. I enjoy working with the professionals in the Collaborative community and many of them are my friends.
  2. My clients will be more satisfied because I will provide a more efficient product to my clients, which means spending less time litigating (and in the worst instances fighting with attorneys who chose to make the process personal).  The process is also more efficient and the clients happier, long-term, because we spend more time rationally solving their disputes rather than letting a stranger decide their fate.
  3. The children of my divorcing clients will likely feel less tension because my clients will be more involved in the problem solving process so that they can learn to solve their disputes better in the future without my help.  In addition, they can choose to prioritize their children's needs in the process, thereby giving their children a voice in the room that they likely wouldn't have in court.
  4. More satisfied clients are more likely to pay their bill.
Great, I have identified one solution that prioritizes all of my goals.  However, in the Collaborative process we wouldn't stop there.  We must also present other options, and we must evaluate whether this is the best solution or at the very least whether it is a realistic one.  If clients don't choose Collaborative as often because the word is not out yet, then is this a realistic solution?  What if one client chooses the Collaborative process and the other hires an attorney who says they won't agree to the disqualification clause?  Is your only option to litigate?  Even the briefest of brainstorming would suggest other options: withdraw from the case, talk to the other attorney further, seek other options from litigating even if there can't be a disqualification clause, etc.

Now that we recognize that there are other options for solving the problem, the next step is to determine what is the best option.  While the best solution may vary from case to case, we've effectively re-framed the problem.  

But, wait a minute.  You're wondering how this helps you get more Collaborative cases and whether the title to this article was just a tease.  Don't worry,  I'm getting there.   

Just because the problem is different than you thought it was, doesn't mean there isn't an answer.  It just means you're still defining the problem incorrectly.  So let's step back even further:

How are you defining a Collaborative Case?

You will often hear attorneys who haven't been trained in Collaborative Law still say: "Well, I am collaborative."  You will also hear Collaboratively trained attorneys often say: "Well, I haven't had any Collaborative cases yet."  How can untrained attorneys be getting Collaborative cases when trained attorneys aren't? Obviously, their definitions are different.  

At the recent MCLC's Interdisciplinary Introduction To Collaborative Law Training we provided some key terms to understand in Collaborative Law, and one of the most important is the distinction between Collaborative and Cooperative:
Cooperate/Collaborate – When people cooperate, they work independently toward separate goals that may be compatible but are not necessarily mutual, and often compromise to reach resolution; when people collaborate, they work together toward shared, mutually beneficial goals, and co-create a resolution.
When untrained attorneys say that they're collaborative, what they are really saying is that they wont' fight you unnecessarily but that their goal is still the best possible resolution for their client.  They really mean that they are willing to be cooperative.  As Collaboratively trained professionals, we have the skills to go beyond cooperating and help our clients learn how to actually Collaborate.  

Consider an example:  I have a case where the other attorney refuses to sign a Collaborative Process Agreement, but agrees to meet outside of court in order to try and settle "amicably."  Rather than discuss the parenting plan details with the attorney over the phone I suggest that we have a meeting with both clients in the room so that they can be part of the discussion.  While my client has a position that he has come in with, I encourage him to consider what his goals are and to be open to other options.  In the meeting, I help my client voice his goals and concerns, but I don't only speak for him. The other attorney follows my lead and encourages her client to do the same.

Is that a Collaborative Case?   

Using the skills I learned from Collaborative training, I've helped move the discussion past a simply cooperative discussion to a potentially Collaborative one.  Just because the clients haven't signed on to do this with every issue doesn't mean they can't still benefit from these skills being applied to their case.  

By applying these skills to a case that may not be considered "technically" a Collaborative case, I have still manged to meet some of my original goals.  I didn't have to give up the case (or the fee), and my client (and his children) are potentially in a better position because of the skills I've applied to the negotiation.

If you apply your Collaborative skills to more of your cases, 
then those ARE Collaborative cases.  

Over the course of my career I have handled many litigation, negotiation, and cooperative cases.  Since I took the Collaborative training, I have had only five cases where both parties agreed to sign a Collaborative Process Agreement.  Should I only count those cases as Collaborative cases?  What if an agreement wasn't reached?  Is that better or worse than a case that was not an official Collaborative case, but settled outside of court because I treated it like one?  

Collaborative law practice is a mindset and a set of skills, and if you haven't had any Collaborative cases yet it's because you aren't applying those skills and accepting that mindset.  Reframe the problem.  

Stop trying to turn clients into Collaborative cases.  Instead help your clients by applying your Collaborative skills to their case, whether or not the other side agrees to sign a Collaborative Process Agreement.  If you have that mindset, then the next client that walks into your office is your next Collaborative case.

Monday, September 15, 2014

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 and obtain a contrary order." - Bower
This order was made after multiple cross complaints for contempt were filed regarding the adherence to the parenting plan and legal custody requirements of the parties' divorce judgment.  The SJC recognized the usefulness of parent coordinators, but found that the order in this case "exceeded the bounds of the judge's inherent authority and was so broad in scope that it constitutes an unlawful delegation of judicial authority."

In their discussion, the SJC points out that
"Despite the increasing use of parent coordinators in Massachusetts, the specific functions of a parent coordinator, including the parent coordinator's duties, necessary qualifications, or scope of authority, have not been set forth by statute or court rule. "- Bower
Due to the court's broad inherent equitable powers the SJC did conclude that judges have the authority to appoint parent coordinators in "appropriate circumstances" and indicated some bounds that might be "appropriate":
"Therefore, probate court judges possess the inherent authority to refer parties to a parent coordinator in appropriate circumstances in order to conserve limited judicial resources and aid in the probate court's functioning and capacity to decide cases, or if in the judge's discretion such referral is necessary to ensure the best interests of the children in a divorce- or custody-related proceeding." - Bower
However, this authority must be limited and was exceeded in this case: "A judge's inherent authority does not extend to compelling a party to submit to the binding decision-making authority of a parent
coordinator without that party's consent."

The SJC was also concerned that the order in this case put off a decision on the existing pending contempt complaints and limited the filing of future claims.  Both of these exacerbated the due process concerns.

There is very clear language from the SJC that "a judge in the Probate and Family Court possesses the inherent authority to refer parties to a parent coordinator."  And also that they are not limiting the right of parties to agree to the use of these services.  If there is agreement, then the issue is easy, but even without agreement, the SJC is indicating that parent coordinators may be useful so long as the judge is careful not to give up too much of their own authority.

Therefore, the SJC asks the Probate and Family Court to promulgate a rule governing the appointment of parent coordinators to help ensure appointments address these and other concerns that the court has over training, favoritism in appointments, etc.  While a lengthy decision, Bower finally brings us some clarity on the SJC's position regarding Parent Coordinators.  Now, the Probate and Family Court can give parents even more clarity by creating the Rule the SJC has asked them for.

Thursday, August 7, 2014

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.

Wednesday, August 6, 2014

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 explained the process for admission to legal practice in the US, the American court system, the American litigation process, and alternative dispute resolution.

This trip was a unique opportunity for Valerie to meet students and professionals from a very different legal system from ours and to share information about the American legal system.

Friday, August 1, 2014

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 reform act). Indeed, the Legislature appears to have viewed the creation of the four categories of alimony as providing greater discretion to judges." Zaleski (emphasis added).
Essentially by clarifying that there are four types of alimony, the SJC believes that the legislature has given the trial judges great discretion in deciding the best type of alimony to fit the facts of each case.  In this case, that question surrounds the difference between rehabilitative and general term alimony.

2. All of the Relevant Factors from § 53(a) Must be Considered when determining the TYPE OF ALIMONY

In this case, the lower court very extensively identified the factors in § 53(a) thereby limiting the ability of the SJC to disturb the lower court's discretion.  

3.  Rehabilitative Alimony vs. General Term Alimony is about the predictable potential for self-sufficiency, and DOES NOT REQUIRE A SPECIFIC EVENT OF SELF-SUFFICIENCY 

The primary difference in effect is that Rehabilitative alimony has a default five year limit and in this case general term alimony could have lasted thirteen years.   The Wife, in an effort to extend her alimony award, argued that rehabilitative alimony required a finding that "a specific event in the future" would occur where she would become self-sufficient.  The SJC agreed that the Wife had provided good examples of this type of event: "completion of job training or a medical residency, passing a licensing examination, or graduation from a specific educational program."  However, the SJC disagreed that the trial court was limited to these types of specific events:
"However, we conclude that, in some circumstances, the potential of future reemployment may provide a basis for deciding that rehabilitative, rather than general term, alimony should be awarded." Zaleski.
It seemed relevant to the SJC in their evaluation of the lower court's findings on this issue that the Wife had not shown "reasonable diligence" in searching for new employment.

4.  NEED is a RELATIVE term

The lower court ordered the alimony amount as 35% of the Husband's base salary of $400,000, but failed to clearly identify why the Husband's bonuses were not included (which varied but had resulted in some years with a total income over a million).  The SJC points out that where an award is necessary under general term or rehabilitative alimony, the award "must reflect the parties' marital lifestyle"

"Because 'need' is a relative term for purposes of the act, it must be measured in light of mandatory considerations that include the parties' marital lifestyle."  Zaleski.

This is consistent with a recent Appeals Court 1:28 decision that we previously posted about.

5. OVERSPENDING may negate a marital lifestyle that exceeds the 35% limit

The Wife argued that the 35% award was not sufficient to meet the marital lifestyle, but the SJC supported the limitation based on the lower court's findings that the parties, despite their significant household income during the marriage, overspent.  This is interesting in that the SJC is willing to let a Judge second guess marital lifestyle of the parties, while at the same time requiring that the marital lifestyle defines need.   Once again, this confirms that good findings will give trial judge's significant discretion.

6. BONUSES should be included, UNLESS...

The Act defines income to include all income as defined by the Massachusetts Child Support Guidelines which clearly includes bonuses.  The lower court therefore erred by not including bonuses.  However, the SJC didn't go so far as to say that the lower court order was vacated on this issue.  The SJC left the door open for lower courts to exclude bonuses by how they remanded this issue:
"Because the alimony amount was not calculated on the basis of all of the husband's income, as required by the statute, and because the finding that the wife agreed that the husband need not pay child support was erroneous, we are unable to conclude that the amount of alimony was determined after due consideration of all of the statutory factors." Zaleski.
The SJC is essentially saying that the interplay of child support in this case, specifically "no child support order" and the Husband's paying all of the private school costs, might be a factor in excluding some of his income, for instance his bonuses, from the alimony calculation.  However, they are remanding this issue because the lower court's findings were not consistent enough with this potential reasoning.


The Wife also challenged the property division on what the SJC seemed to think was a little too meticulous of an accounting and also on the significantly unequal debt division ($75,519.04 to Wife and $26,200.71 to Husband).  The SJC pointed out that $57,000 of the Wife's debt was credit card debt incurred by her alone while the Husband was paying the costs of the home and giving her cash.  While presumably the Wife felt that the temporary arrangement was not sufficient, the SJC's unwillingness to second guess this issue highlights the importance of temporary orders.  Whatever the temporary order was, the SJC is not going to look to redo an accounting for the period of separation.

Thursday, July 24, 2014

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 eligible for the old-age retirement benefit under the United States Old-Age, Disability, and Survivors Insurance Act, 42 U.S.C. 416, typically between 66 and 67 (a full retirement age calculator is available here).

However, the Court has discretion to extend "an existing alimony order for good cause shown; provided, however, that in granting an extension, the court shall enter written findings of (i) a material change of circumstance that occurred after entry of the alimony judgment; and (ii) reasons for the extension that are supported by clear and convincing evidence."

While this second part of section 49(f) certainly opens the door for a Judge to extend alimony past full retirement age for good cause shown there are two requirements which the recipient would have the burden of proving.  These two requirements require some unpacking:

1. To extend there must be written findings of a material change of circumstance that occurred after entry of the alimony judgment.

This would seem to require that the recipient must show that something significant has changed or the order should end.  In other words, if the parties are still earning the same amount of income and have similar health and other expectations as they did at the time of the judgement of divorce, then alimony should end upon reaching full retirement age.

That outcome might be considered unfair in situations where parties (and Judges) assumed under the old law that alimony would continue into retirement, especially if one party received more of the retirement assets or had substantial additional earnings during the separation.  However, it is unclear from the statute, if any of these issues would be relevant as they do not represent a material and significant change in circumstances.

There has been no guidance yet from the Appeals Court (as of the writing of this blog post) regarding this type of case.  In the Green case the Appeals Court dealt with the first part of section (f) which allows the court to deviate on the issue of post-retirement alimony at the time that the initial alimony order is created. One quote that might be relevant from Green, if a trial Judge was looking for some leeway in deciding whether to extend alimony past full retirement age, has to do with looking closely at the property division at the time of the divorce:
"the Act does not depart from the long-standing principle that alimony and property division are 'interrelated remedies that cannot be viewed apart..."  Green at 1109.
Of course, without more guidance from the Appeals Court it is unclear if this applies to cases where that property division happened prior to the enactment of the Alimony Reform Act.  On first impression, it would seem that the second part of section 49(f) would ignore the relation of the property division at the time, and limit the inquiry to any material and significant change in circumstances since that time.

Practically, in most cases that are well past their original judgment, a material and significant change in circumstances may not be that difficult to prove.  For example, if the recipient has reached retirement age as well, then their income has likely been reduced.  This could be enough to satisfy the requirements of the statute.  It would all depend on the trial judge's opinion (and possibly thereafter the Appeals Court's opinion) of whether this constitutes "good cause shown."

2. To extend there must be written findings that the reasons for the extension are supported by clear and convincing evidence.

This section appears to place the burden on the recipient to show by "clear and convincing evidence" that there has been a change as required by the first clause, and that the change represents a good reason for extending alimony.  This likely requires that the recipient prove, all over again, that there is a need and ability to pay.  While clear and convincing evidence may sound like a significant burden on the recipient the reality is that if the recipient is dependent on the alimony income, and the payor still has the ability to pay (which will often be obvious from a financial statement), then this burden is not that difficult to establish in many cases.

Upon a close reading, while the burden is placed on the recipient to prove their case by "clear and convincing evidence" part (2) of section 49(f) seems to take a lot of the teeth out of the language that alimony SHALL terminate upon the payor reaching full retirement age.  This language will have significant impact on decisions going forward, but it remains to be seen how much judges (and the Appeals Court) will be willing to apply it to cases that were decided before the Act was enacted.

Wednesday, July 23, 2014

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 running the formula two numbers are generated: 30% of the difference in the parties' gross incomes, and 35% of the difference in the parties' gross incomes.  At this point it might be tempting to argue that a fair compromise is 32.5% of the difference in the parties' gross incomes.  This might be a fair and reasonable resolution in a case IF alimony is warranted by the facts of the case, but that is a big "IF".

Which leads us to the question: Can the Court order less than the 30-35% formula for Alimony in Massachusetts?

The answer based on close reading of the language of the statute is clearly YES!  There are three scenarios where the court can order less than 30% of the difference in gross incomes:

Scenario 1. No Need - In Hassey the Appeals Court pointed out that the "Act altered neither the fundamental purpose nor the basic definition of alimony: 'the payment of support from a spouse, who has the ability to pay, to a spouse in need of support.' G.L. c. 208, § 48."  Hassey.   The Appeals Court has clarified that the formula (despite its convenience) is not the first inquiry in a case. The first inquiry remains whether or not there is a need for alimony and an ability to pay.

In addition, the formula states that "the amount of alimony should generally not exceed the recipient's need..."  So the first inquiry should be "what is the recipient's need."  If the recipient does not have a need for alimony, or their need is less than the 30% figure then alimony should be less (anywhere in the purple range in the graph above).

Scenario 2. No Ability to Pay - As described above, the Appeals Court in Hassey clarified that the first inquiry is whether or not there is a need for alimony and an ability to pay.  If the potential payor of alimony does not have the ability to pay alimony, then it doesn't matter what the formula yields; the amount will have to be limited by the payor's ability (even if a need exists).

Scenario 3.  Marital Lifestyle is a limiting or an expanding factor depending on the circumstances.

WARNING: There is a trap in the language of the statute; many people define "need" as only the basic needs and would therefore suggest that a recipient's "need" may be well below what they are used to in the marital lifestyle.  The Appeals Court has also clarified (in Hassey and in a recent Rule 1:28 decision) that the court must consider the factors listed in M.G.L. c. 208, §53(a).  Included in these factors is the "ability of each party to maintain the marital lifestyle."   Therefore, "need" is not the amount a recipient requires for a basic level of subsistence, but rather the amount a recipient requires to "maintain the marital lifestyle."
"Need" is not the amount a recipient requires for a basic level of subsistence, but rather the amount a recipient requires to "maintain the marital lifestyle."
This means that the factual evaluation of the "marital lifestyle" could create a higher figure than basic need might imply.  However, this can also be a limiting factor.  If the parties lived a frugal marital lifestyle and the payor only recently experienced a great leap in income, then the "need" required to maintain the "marital lifestyle" might be well below the 30% figure.

Practice Tip:  If I was arguing a case where I felt that the 30-35% formula was not appropriate, then before looking at the formula, I would argue that the court must look at the definition of alimony (need and ability to pay) and the factual factors in section 53(a).

As with many of these evaluations this complicated factual inquiry required by the court to determine alimony leaves a lot of room for error.  Clients should be encouraged to try mediation, collaborative law, or other out of court settlement options before taking this issue to a Judge, because both sides risk an alimony order that doesn't reflect all of the details of their financial reality.

Tuesday, July 22, 2014

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-ins, the informal packet must be complete and include all necessary documents and filing fees to be heard the same day.  This procedure should improve the experience of petitioners and we applaud the Register's efforts.

If you are looking for assistance in preparing the necessary documents to include in an informal packet, contact us for a consultation.

Wednesday, July 9, 2014

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 relate to the calculation of alimony in Massachusetts:

The Full Retirement Age Calculator assists with calculating the full retirement age under the Social Security Act, as referenced in the Alimony Reform Act.

The Alimony Recapture Calculator assists with determining if your alimony order will lead to any tax recapture under the current IRS rules.

Click here to view all of the Kelsey & Trask, P.C. iPhone Apps.

Wednesday, June 25, 2014

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 dealing with the determination of amounts and duration of alimony, the Appeals Court pointed out clearly that the "Act altered neither the fundamental purpose nor the basic definition of alimony: 'the payment of support from a spouse, who has the ability to pay, to a spouse in need of support.' G.L. c. 208, § 48."  Hassey.   Because of the existence of a formula for calculating the maximum general term alimony under the new law, many have argued that the new statute encourages alimony in cases even when the recipient spouse may not have a need, but simply has a lower income. The Appeals Court has clarified that the formula (despite its convenience) is not the first inquiry in a case. The first inquiry remains whether or not there is a need for alimony and an ability to pay.

2. All of the Relevant Factors from § 53(a) Must be Considered

In this case, the lower court failed to include in the findings of fact a finding making it clear that "he considered the ability of each party to maintain the marital lifestyle." Hassey.  This failure opened the door for the Appeals Court to review the amount of the alimony award.

3. Exceeding the 30-35% Maximum Requires Specific Determination of Need

The base alimony of $8,500 per month represented approximately 41% of the difference in incomes.  The Appeals Court vacated this award as not supported by the findings:
"While such an award may nonetheless be reasonable and lawful under § 53(b ) if based on a specific determination of the recipient's need (and assuming a proper consideration of the other spouse's ability to pay), we cannot say that is the case here because the judge made no finding as to the amount of alimony the wife needed in order to maintain the lifestyle she enjoyed during the marriage. See Heins v. Ledis, 422 Mass. 477, 484 (1996) ("An award of alimony is improper absent a finding of financial need on the part of the recipient spouse")." Hassey.
4. Self-Modifying Order is NOT Authorized by the Act.

The lower court in Hassey attempted to provide the Wife with further alimony via a self-modifying alimony provision requiring the Husband to pay 30% of Husband's gross income in excess of $250,000.  The Appeals Court had two problems with the Self-Modifying Order.  First, the self-modifying order "is not based on a judicial determination, supported by subsidiary findings of fact, of an increase in the wife's need accompanied by the husband's ability to provide for the same." Hassey. This determination on a modification would put the burden on the Wife but by creating a self-modifying order the burden is improperly shifted to the Husband.

Second, the Appeals Court found that the self-modifying order is "inequitable because it requires only the husband to disclose quarterly income to the wife."  Hassey.  If the Wife earned income, it would certainly affect her need and the calculation of any formula difference in the future.

5. The Act Defines "Full Retirement Age", which is not the same as "Retirement"

The language of the order terminated the alimony order upon "retirement as defined in the Act Reforming Alimony of 2011, as it may be amended." Hassey.  While the Appeals Court recognized that the lower court meant for "retirement" to mean "full-retirement age" as defined in the act, the exact terminology is important:
"...the Act does not define the term "retirement," and the order could therefore be read to terminate instead upon the husband's actual retirement. Because the order could be read as the husband suggests and because the case must be remanded in any event, we also vacate and remand this portion of the amended judgment to enable the judge to eliminate the ambiguity." Hassey.
6. All of the Relevant Factors from § 34 Must be Considered in Property Division

"Section 34 contains both mandatory and discretionary factors that must be considered... the Act added for consideration 'the amount and duration of alimony, if any.'" Hassey.

The Appeals Court points out the failure of the lower court to include in the findings of a fact reference to consideration of the parties' financial needs and how the alimony order might affect the property division. Similar to the lower court's failure to include all factors under § 53(a), this failure opens the door for the Appeals Court to scrutinize the award of the lower court. Once that door was open, the Appeals Court weighed in on the inherited property with their own thoughts:
"In view of the family's enjoyment of the Chatham property during the marriage-- contributed by the wife to the marital partnership--the exclusion of the wife's interest in the Chatham property cannot be sustained. We think the judge took too narrow a view of "financial reliance" upon an asset, evidently basing his analysis solely on the asset's impact on the family's tax obligations."
7. Incomplete Findings will lead to Greater Appellate Oversight

Reviewing a property division or alimony award is a two step process:
"First, we examine the trial judge's findings to determine whether all relevant factors were considered (and whether irrelevant factors were disregarded). See Rice v. Rice, supra at 401-402; Bowring v. Reid, 399 Mass. 265, 267 (1987)." Hassey.
"Next, we decide whether the rationale underlying the judge's conclusions is apparent and whether these "flow rationally from the findings and rulings." Williams v. Massa,431 Mass. 619, 631 (2000)." Hassey.
Considerable discretion is given, but only if all factors were considered.  As practitioners the obvious lesson here is that very detailed and complete Proposed Findings of Fact could be the key to losing or winning on appeal.

Thursday, June 12, 2014

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, including employability through reasonable diligence and additional training, if necessary; economic and non-economic contribution of both parties to the marriage; marital lifestyle; ability of each party to maintain the marital lifestyle; lost economic opportunity as a result of the marriage; and such other factors as the court considers relevant and material."  M.G.L. c. 208, §53(a).  
The judge is limited in cases of general term alimony to not exceeding "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."  M.G.L. c. 208, §53(b).  However, the judge may deviate from these limitations for the reasons enumerated in §53(e).

In Steele v. Steele, a Rule 1:28 decision by the Massachusetts Appeals Court successfully tried and argued by Jonathan R. Eaton through Kelsey & Trask, P.C., the husband and wife had been separated for the last seven years of a twenty-eight year marriage.  During their separation, the wife lived frugally, while the husband's upper middle class lifestyle remained unchanged.  Further, the value of the couple's assets increased during this period.

The trial judge had calculated the wife's need for purposes of determining the amount of alimony that the husband was to pay, as well as analyzing the §53(a) factors, by examining the marriage and lifestyle during periods of cohabitation and separation.  The husband appealed, arguing that the wife had reduced her need, and as such, the amount of alimony that she required should be correspondingly reduced.

The Appeals Court disagreed, and affirmed the alimony award of 30 per cent of the difference in the couple's respective incomes.  M.G.L. c. 208, §53(e)(6) provides that a judge may deviate if there is a significant period of marital separation, but only for considering the length of the marriage.  Not marital lifestyle, and not need.  The Appeals Court cautioned during oral argument that allowing need to be defined during a period of separation would open the door for potential alimony payors to benefit from financially cutting off access to the marital assets from potential alimony recipients.  Conversely, the would-be alimony recipients would benefit from spending lavishly during a period of marital separation.  The Court wrote:
"It would obviously defeat that purpose if the separation itself needed to be vigorously disputed by the parties to avoid the specter of enduring advantage."
Clouding the alimony analysis was the wife's separate support action a year prior to the husband's complaint for divorce.  The separate support action was resolved by stipulation, for a weekly amount significantly less than the alimony award.  The husband appealed this issue as well, arguing that a material change in circumstances had not occurred warranting a change in the amount to be paid.

The Appeals Court disagreed on this issue as well, rejecting the husband's argument to apply the standard in modifying a divorce judgment, when a divorce had not yet taken place.  A separate support action is different from a divorce, as the marital relationship remains while the spouses are living apart, and there is no contemporaneous division of the marital assets.

Lastly, the husband argued that the couple's assets should have been divided using values as of the date of separation, and not at the time of divorce.  The trial judge had awarded the husband more of the assets than she did to the wife, to reflect the differences in their respective contributions after the couple separated.  The trial judge found that, through the joint management of certain assets and the continued filing of tax returns, the couple continued some aspects of their marital partnership.  As such, using values as of the date of separation would have been improper, and Appeals Court agreed.

If you should have any questions about alimony or property division in Massachusetts, contact the attorneys at Finn & Eaton, P.C. or Kelsey & Trask, P.C. to schedule a one-hour consultation.

Wednesday, May 21, 2014

Divorce Mediation Infographic

Divorce Mediation
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.

Wednesday, May 14, 2014

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 help you and your spouse want from professionals and how much of the work you're willing and able to do yourselves.  You should consider all of your options before deciding how you want to proceed:

SELF-HELP OPTION - Also referred to as kitchen-table negotiation, self-help means that you and your spouse are reaching the divorce agreements yourself.  If you're able to resolve all of the parenting, legal and financial issues directly with your spouse then these agreements need to be written down in a contract called a Separation Agreement or Divorce Agreement and presented to the court with a Joint Petition for Divorce.  In this option both spouses must figure out emotional and communication issues themselves and research information regarding their legal, parental and financial rights themselves.

SELF-HELP WITH ATTORNEY REVIEW - Many people reach their agreements through the Self-Help Option but want to ensure that the Separation Agreement properly reflects their decisions and protects them legally.  In this option, one party hires an attorney to write the Separation Agreement and other court forms.  Since one attorney cannot represent both parties, if the other spouse wants legal advice regarding the draft Agreement then they would take the draft Separation Agreement to their own attorney for review.  In this case, the parties handled most of the parenting, legal and financial issues themselves and have individual legal advice of an attorney to ensure their decisions were informed.  The Separation Agreement is then presented to the court with a Joint Petition for Divorce.  In this option both spouses must figure out emotional and communication issues themselves.

ATTORNEY NEGOTIATION OUT OF COURT - Many people are unable to negotiate directly with each other but want to avoid the financial and emotional cost of court.  In this option, one or both parties use an attorney to negotiate on their behalf.  Depending on the complexity of the issues in the case, this can include meetings with both attorneys and the parties.  In this option, the attorneys are typically only involved on the issues that the parties cannot resolve on their own.  Since attorneys are not usually trained in mental health or financial planning, if there are complex emotional or financial issues, the parties must handle those issues themselves or hire additional professionals.  If agreements are reached then a Separation Agreement is drafted and presented to the court with a Joint Petition for Divorce.  In this option both spouses must figure out communication issues themselves.

LITIGATION (or Arbitration) - If spouses are unable to reach agreements, then ultimately they can request that a judge decide for them.  While every divorcing spouse has a right to a trial, the stress, time frame, and cost of litigation are the highest of all the options.  Sometimes if there are factors which make it impossible to settle outside of court (such as domestic violence or financial dishonesty) then litigation may be the only option.  However, in most cases litigation should be the last resort.  Since attorneys are usually not trained in mental health or financial planning, if there are complex emotional or financial issues, the parties must handle those themselves or hire additional professionals.  In this option communication issues are often made worse by the adversarial nature of litigation.  The time and cost of litigation can be reduced by combining it with other options.  For example, a mediator is sometimes brought in to assist with settling specific issues in a litigation case.  In some instances parties choose to use arbitration, submitting their case to an agreed upon arbitrator who will decide the contested issues.  Arbitration is often faster, less formal, and cheaper than awaiting a trial before a judge.  However, the biggest problems with litigation still exist in arbitration: lack of self-determination and lack of communication.

MEDIATION - If you are unable to reach agreements directly with your spouse but are willing to negotiate with them and voice your own interests, then a mediator can help with communication and providing information about legal, parenting and financial options. If the mediator is an attorney, then they can draft the Separation Agreement, but cannot provide either party with specific legal advice.  The Separation Agreement is then presented to the court with a Joint Petition for Divorce.  In this option, the parties decide the parenting, legal and financial issues themselves with the assistance of a neutral mediator, but did not have individual legal advice of an attorney to ensure their decisions were informed in all respects.  In this option both spouses must figure out emotional issues themselves.

MEDIATION with ATTORNEY ADVICE - It is recommended that both parties obtain individual legal advice throughout the mediation process, or at the very least to review a draft Separation Agreement before signing.  If the mediator is an attorney they can draft the Separation Agreement, but cannot provide individual legal advice.  In this option, the parties decide the parenting, legal and financial issues themselves with the assistance of a neutral mediator, and have individual legal advice of an attorney to ensure their decisions were informed.  The Separation Agreement is then presented to the court with a Joint Petition for Divorce.  In this option both spouses must figure out emotional issues themselves.

COLLABORATIVE DIVORCE - While self-determination and the private nature of mediation are attractive to many people, not everyone is comfortable negotiating by themselves.  In a Collaborative Divorce, your collaboratively-trained attorney participates in the negotiation meetings with you and helps you advocate for your position.  Unlike the attorney negotiation option, in a Collaborative Divorce the collaborative attorneys formally agree not to go to court, which increases the likelihood of an out-of-court settlement.  The other hallmark of Collaborative Divorce is the use of specific neutral professionals in the process to ensure that communication improves and that parties obtain the information needed to make informed decisions.  A Collaborative Coach/Facilitator helps parties communicate better, recognize their emotional triggers in the process, and fosters a team approach to problem solving.  A Financial Neutral helps parties collect, summarize and evaluate financial options so that any legal decisions reflect the parties actual financial goals.  A neutral Child Specialist may be consulted if there are specific child-related issues requiring evaluation.   Each participant in the Collaborative process has a role that helps the parties address a need that arises during divorce.

Many attorneys and most court websites in Massachusetts make it seem like your only option is to file a Complaint for Divorce and start litigation.  That is simply not true.  The other six options presented above result in a Joint Petition for Divorce when successful.  All of these options range in the amount of help you receive from professionals, and in most cases the more help you receive the more cost there will be (although this may not be true in litigation where many of the costs are related to continuing conflict rather than resolving it).  You have a choice as to how much help you need.  The most important part of that sentence is that YOU HAVE A CHOICE!  Make it an informed one.

To see a summary of these options refer back to the chart we provided in Part 1 of this series.

Thank you to Dan Finn for inspiring the images in this post.

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