Tuesday, February 25, 2014

Practical Tips for Completing the Massachusetts Family Court Financial Statement

A financial statement is required in every divorce, paternity, and child support action in Massachusetts.   The financial statement is one of the most important papers that you will file with the Court.  A financial statement will be required every time you appear in Court when there is an issue relating to finances, and you must sign your financial statement under the pains and penalties of perjury that the information contained in the financial statement is complete, true, and accurate.

In a divorce case, Massachusetts Supplemental Probate Court Rule 401 provides that, within 45 days after the date of service of the Summons, each party must serve on the other party a complete and accurate financial statement.  Rule 401 also allows the parties to make a request for financial statement as well.

The form of the financial statement which each party must complete is dependent upon his or her income. A party whose income equals or exceeds $75,000.00 must complete the long form financial statement. The long form financial statement should be printed on purple paper (although the Standards for Computer Generated Forms indicate both should be on pink paper, the long form available at the courthouse is on purple paper).  A party whose income is less than $75,000.00 must complete the short form financial statement.  The short form financial statement should be printed on pink paper.  The short form financial statement is also available in Spanish and Portuguese.
Warning: Unless you have Acrobat Standard or Pro you won't be able to save any information you enter on these electronic court forms.  If you enter information and save the document in Acrobat Reader (the free adobe program most people have on their computer), all of the entered information will disappear when you reopen it.  We therefore recommend that you print the document immediately after you complete it, or simply print the blank document and work on it by hand.
Many people find these forms confusing, and the court has provided some basic instructions for both the short form and the long form.  In addition to these instructions, we have found that the following tips have been helpful to our clients:

Documents: When completing the financial statement it will be helpful if you have certain documents available to refer to.  Collecting all of these documents before you begin drafting will make the process easier:

  • most recent (or a representative) paystub;
  • your last year's tax return with accompanying schedules, W2s and 1099s;
  • most recent statements for your bank accounts, retirement accounts, investment accounts, credit cards, loan statements, etc.;
  • any appraisals or other valuations for your property; and
  • a budget of your average weekly expenses.

Weekly Expenses:  Everyone has some weekly expenses that do not fit into the listed categories (e.g. cable, internet, netflix, etc.).  Create a realistic budget for what you are spending regularly or your financial statement will not accurately reflect your financial situation and won't be as useful.

Assets:  List anything of value that you may have interest in, even if there isn't a listed category for it (e.g. frequent flyer miles, or digital assets, such as the value of your iTunes library).  In addition, it is advisable to list your marital interest in your spouse's property to ensure that you have reserved your rights to that property.  This can be indicated by one line in the "Other" category: "Equitable Interest in Marital Property of Spouse - Value Unknown".

Trusts:  Any trust interest (as trustee or beneficiary) should be listed with an explanation of the interest.  Trusts are often misunderstood or misinterpreted and if you are not 100% clear on what your interest in a trust may be, you should consult an attorney regarding the terms of the trust.

Schedules:  If you work for yourself, you must additionally complete Schedule A.  If you own any rental property, you must additionally complete Schedule B.  If these schedules don't match your most recent tax return, expect questions as to why.  Judges are mandated reporters to the IRS and DOR, and you may be required to explain why the income and expenses you are reporting to the court doesn't match what you reported (also under oath) to the IRS and DOR.

How accurate do you have to be?  Very Very Very accurate.  Remember, you are signing your Financial Statement under the pains and penalties of perjury that its contents are complete, true, and accurate.  If there are any inaccuracies or untruths, you may be asked about it in Court, which could hurt your credibility and therefore your case.  In addition, any inaccuracies could affect the enforcability or modification of agreements.

Footnotes/Endotes:  Sometimes the form doesn't allow the room for you to completely and accurately describe a specific situation.  In that case, include a footnote or endnote and write an explanation at the end of the document.  This is not a situation where less is more.  Anything that is confusing or incomplete could be considered inaccurate or misleading.

Is a Financial Statement confidential?  Financial Statements are impounded, which means that they are filed separate from your court file, which is public record.  Your Financial Statement is only available to you, your attorney(s), the opposing party, and his or her attorney(s), after showing a proper ID.  We recommend that when you file a Financial Statement, you redact all but the last four digits of your Social Security number and account numbers to ensure further privacy.

Tuesday, February 18, 2014

Enforcing Parenting Agreements – What happens when the Plan Fails?

"I think a plan is just a list of things that don’t happen.”– Parker in The Way of the Gun
Often when negotiating a parenting plan with clients, I point out that the actual written plan doesn’t dictate what happens.  It’s just a piece of paper.  Even when the court enforces the agreement that process takes time, effort, evidence, follow-up, and more time.  When both parents agree to guidelines for co-parenting that make sense to both of them, then they are more likely to end up with an actual plan that everyone buys into.   When parents can’t agree the result is typically a Judgment or Divorce Agreement that results in more litigation in the form of Modification actions, Contempt actions and Appeals.

One such case was recently remanded to the trial court by the Massachusetts Appeals Court on a 1:28 decision.  The case involved a Complaint for Modification, Cross-Complaints for Contempt and Cross-Appeals.   While the issues being appealed are numerous, one issue in particular highlights the problems with enforcing a parenting plan when it doesn't work.

The Process for Enforcing a Parenting Plan:

M.G.L. c. 208 Section 31 defines legal and physical custody and requires that the court make a determination of both if the parties are unable to agree.  If the parties agree then they must submit a written agreement to the court.  In addition to defining custody, divorce agreements (sometimes called separation agreements) will typically include a parenting schedule and provisions relating to communication and notification.

For example, in this recently appealed matter, the separation agreement included provisions relating to communication between the parents during illnesses of the children, major decisions concerning the children’s upbringing and their general well-being.  These types of provisions are typical and, when followed by parents, they create a co-parenting relationship that encourages both parents to remain involved in the day-to-day life of their children.  But what happens when these provisions are not followed?

What is the remedy for a damaged relationship with your child? How can the court go back and fix that?  

When a contract provision requires that one party pay the other party $1,000 and that provisions is violated, the solution is obvious.  If you spend any time in a district court, you will see that the majority of cases in small claims court are exactly these types of cases: credit card companies suing over non-payment of debts.  The resulting agreement or judgment involves simply a plan for making the payment or executing against some asset of the debtor.

The remedy for non-payment is obviously payment.  But what is the remedy for missed parenting time? What is the remedy for a damaged relationship with your child? How can the court go back and fix that?

The Failures in the Process:

In this Appeals case, the father alleged violations of the communication provisions (among others) that stretched over six years, and is criticized in the mother’s brief for waiting to bring these allegations.  This is a catch 22 for the father.  If he brings a Complaint for Contempt every time the mother fails to communicate with him, they would always be in court (probably with Complaints from both sides).  On the other hand, if he waits until it becomes a pattern, he is criticized for waiting too long.

According to the father’s brief, despite the father demonstrating numerous violations, the trial judge indicated that he found “no basis upon which to find any contempt” by the mother.  The trial judge also expressed frustration at the lack of remedies the court might have to resolve the conflicts in communication presented by the father:
“… I can go up on the roof of the courthouse now and say on the… matter, the parties shall cooperate with one another, right?  But I recognize that I’m a judge.  I’m not the king, OK?  I am simply a Judge.  I can’t make things happen.”
This is a sentiment that is often discussed in the family court, because regardless of what the judge orders, parenting plans are difficult to enforce.  The violations are extremely fact specific, often relying on he-said/she-said testimony, and there remains the issue of when and how often should these issues be raised to the court.  But does that mean that there is no remedy available?

As the father argues in his brief, if the court approves the Agreement and finds it to be fair and reasonable, thereafter incorporating the agreement into a Judgment, it should be enforceable.  There has to be some remedy available to a party if he can prove that there has been a violation.

The father argues that the need for a remedy is not just about justice and fairness, but required by Article 10 and 11 of the Massachusetts Constitution’s Declaration of Rights.

Article 10 reads in part:
"Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty and property, according to standing laws."
and Article 11 reads:
"Every subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely...; completely, and without any denial; promptly, and without delay; conformably to the laws."
If the trial judge abused his discretion on the facts by not finding any violations by the mother, then the father is right that there has to be a remedy.  The law requires it.   For now, the Appeals court avoided this issue by remanding the case back to the trial judge requiring that the judge provide findings of fact on both the father and the mother’s Complaints for Contempt.  While this is not a loss at the Appeals level it represents another significant delay for both sides in seeing any remedy out of the court.

Finding a Remedy:

When teaching an associate how to prepare for a trial or motion hearing, I always advise them to first write their proposed judgment or order.  Once you know what you’re looking for, then you can figure out the rationale for why you should receive that result.  Then you can figure out what facts you have to prove to support that rationale.

The father in this appeal indicated in his brief that he asked the judge, among other things, to hold the mother in contempt and to order the mother to attend parenting counseling.  If the judge holds the mother in contempt on remand that might have felt like a moral victory to the father, but in practicality that holding alone would not be a remedy for any communication issues.  In many cases parties seek attorney’s fees or monetary sanctions for violations of non-monetary provisions to at least show the violating party that there are consequences.  However, monetary punishment won’t undo damage to a parenting relationship either.

The suggestion by the father that mother attend parenting counseling would at least have the potential to improve communication for the future.  However, it still won’t fix the problems created by the past failures to communicate.  In fact, there is no one hundred percent satisfactory remedy to undo damage to a parental relationship.

Regardless of the result of this matter, their children continue to grow older and time marches on.  Hopefully, the trial court on remand can fashion a remedy that is better than none, but regardless of the result the real lesson is one for other parents; these types of cases are cautionary tales of how the system is broken and may always be broken, at least when it comes to enforcing parenting plans.

Finding a Better Remedy:
“I love it when a plan comes together”
– Colonel Smith The A Team
In many cases the parents are only working to resolve the conflict right in front of them and the litigation process encourages this short-sighted resolution by only addressing specific and immediate conflicts.  The litigation process is designed for parties with a singular conflict that they were unable to resolve themselves, but parenting is not a one-time relationship.

It is possible, however, for parents to avoid the problem with unenforceable agreements and come to a plan they can both buy into.  To reach that consensus takes more than lip service during negotiation.  It requires that the parents be willing to have difficult conversations before the problems arise.
Parents don’t always have to agree what is best for their children to still agree that they both want the best for their children.
Parents can find ways to resolve parenting conflicts more effectively in the future by making use of professional’s experience about the types of problems that arise coupled with honest evaluations of the communication problems that are likely to occur between the parents.  This is not easy work, but parenting is not supposed to be easy.

One of the reasons I practice both Mediation and Collaborative Divorce is because litigation leaves little room for an honest parent-to-parent conversation about working together towards common goals.  When parents can’t have that conversation, a parenting plan is just a list of things that won’t happen.

Tuesday, February 11, 2014

What the Heck is Bitcoin?

Bitcoin is a digital currency that is widely considered only for the tech-savvy and crazy libertarians.   At Kelsey & Trask, P.C. we've been accused of both of those, so why not own it!

As of today, Kelsey & Trask, P.C. will be accepting Bitcoin as payment, in addition to cash, check and credit cards.

If you're a Bitcoin user and a client of K&T, then you simply have one more option to pay your bill.

If you don't know what the heck Bitcoin is, then we suggest you check out this recent video from Mashable:

Everything You Need to Know About Bitcoin in 2 Minutes

We've previously written about the dangers and benefits of paying for your Divorce (or other legal services) with a credit card, and many of those concerns may also apply to your Bitcoin wallet.  The key (no pun intended) with any new technology is to understand it before you dive in.  But if you buy into the idea (okay, that pun was intended), then we're ready and willing to work with you!

Thursday, February 6, 2014

Will Pot Smoking affect a Custody Determination?

Unrolled Joint
(Public Domain Image courtesy of Wikipedia)
Medical Marijuana has been legalized in Massachusetts and  possession of one ounce or less, even for "recreational" use, has been decriminalized.  In addition, marijuana for recreational use has been legalized in two states in 2013, and more may be on the way.

Traditionally, illegal use of marijuana by a parent could result in DCF involvement and would definitely be a factor considered by a family court if two parents were disputing custody in a divorce or paternity action.  Although many parents did not see "what the big deal was", judges would often test for marijuana use and restrict parenting time for parents that tested positive.

Does the national shift towards legalization for both medicinal and recreational use mean that smoking pot should no longer be a factor in determining fitness for custody?  

In an article written by Henry Gornbein when states began legalizing medicinal use, Henry wrote for the Huffington Post on this issue and made the analogy to alcohol use or abuse.

While alcohol is legal to purchase and drink, depending on your age, there are still legal restrictions.  It is not legal to drive when drunk, and a parent who is drunk during their parenting time could be considered neglectful or unfit.  If a parent has a serious alcohol problem, many judges will even order supervised or limited visitation with that parent.  This is an appropriate analogy for how family court judges are likely to view marijuana use.

Even for medical use, and even in states where recreational use is legalized, pot smoking is likely to still carry with it some common sense restrictions.  While the effects may be different than alcohol, the use of a mind-altering drug, whether an illegal drug or a legal one, can affect a parent's ability to care for their children effectively.  A family court must consider the best interest and safety of the children and how marijuana use could affect that standard of care.

While results will likely vary greatly from case to case, as with alcohol abuse, it is clearly advisable for parents to avoid the use of marijuana, even if prescribed by a doctor, when children are in their care.  Despite the shift towards legalization, it is likely that the use of marijuana will continue to affect custody and parenting time determinations in family courts.  

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