Tuesday, December 29, 2015

99.9% Probability of Paternity - Who is a Legal Parent? Part 4

As discussed in our previous post, in order to include the father's name on the birth certificate he and the mother must sign a Voluntary Acknowledgment of Paternity.  If a mother or father refuses to sign the Voluntary Acknowledgement of Paternity, then paternity can only be established by court action and the mother alone will appear on the birth certificate until there is an order of the court to add the father.

If the father or mother wants to establish paternity of a child in Massachusetts, then either party can file a Complaint to Establish Paternity with the Probate and Family Court.  If the presumed father denies or is unsure that he is the father of the child, the Department of Revenue Child Support Enforcement Division can perform a paternity test if the mother requests DOR services. This usually takes 6-8 weeks, and can be required by the court if the presumed father refuses to participate.  The parties can also obtain a private test which is usually faster but will likely cost approximately $600.

Once the test is performed, the court can adjudicate the father to be a legal parent based on the results of the test.  While most genetic marker tests will return a probability of 0% or 99.9% the legal standard in Massachusetts only requires greater than 97% certainty:
"If such report indicates a statistical probability of paternity of ninety-seven percent or greater, there shall be a rebuttable presumption that the putative father is the father of such child and, upon motion of any party or on its own motion, the court shall issue a temporary order of support." - M.G.L. c. 209C s 17 (thank you to Jonathan Eaton of Finn & Eaton for pointing us to this statute)
Of course, whether established in court or voluntarily, legal parentage of a child is only step 1.  Once the court or two parents have recognized the legal rights and obligations of the father, the parents need to define how they will coparent and support the child.  Click here for more information on those next steps.

Previous Post: UnMarried with Children - Who is a Legal Parent? Part 3

Next Post: Adoption - Who is a Legal Parent? Part 5

Tuesday, December 22, 2015

UnMarried with Children - Who is a Legal Parent? Part 3

Unmarried mothers in Massachusetts are presumed to be the legal and physical custodian of a child without going to court.  Unmarried fathers in Massachusetts are not provided with any legal or physical custody rights without going to court, unless they are added to the Birth Certificate at the time of the child's birth.  This is despite the fact that a child support obligation can begin to accrue upon the birth of the child even if the father is unaware of their existence or not involved in the child's life.

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

Signing a Voluntary Acknowledgement has significant legal ramifications. Even if a father is not the biological father, signing the Voluntary Acknowledgement could make him the legal father, with potential rights and obligations for the child's entire childhood until emancipation.

If a mother or father refuses to sign the Voluntary Acknowledgement of Paternity, then paternity can only be established by court action and the mother alone will appear on the birth certificate until there is an order of the court which will be addressed in our next post.

Of course, whether established in court or voluntarily, legal parentage of a child is only step 1.  Once the court or two parents have recognized the legal rights and obligations of the father, the parents need to define how they will co-parent and support the child.  Click here for more information on those next steps.

Previous Post: Married with Children - Who is a Legal Parent? Part 2

Next Post: 99.9% Probability of Paternity - Who is a Legal Parent? Part 4

Friday, December 18, 2015

Married with Children - Who is a Legal Parent? Part 2

Post by Valerie Qian.  Valerie is an Associate at Skylark Law & Mediation, PC.  Valerie's practice includes family law & divorce representation, mediation, and collaborative divorce.

The Presumption of Legal Parentage to a child born of a Marriage

Is it presumed that a child who is born into a marriage is legally the child of the other spouse of the marriage?  The short answer is yes, regardless of whether the child is biologically related to the other spouse.

The statute governing this question in Massachusetts is Massachusetts General Laws Chapter 209C, Section 6.  Moreover, any child born as a result of artificial insemination with spousal consent is considered to be the legal child of the consenting spouse per G. L. c. 46, § 4B.

Chapter 209C, Section 6 states that a man is presumed to be the father of a child if he is married to the mother of a child at the time that a child is born. He is also presumed to be the father of a child if the child is born within 300 days after a marriage ends, whether it ends by divorce, annulment, or death.

A man may also be presumed to be the father of a child if he attempts – even if he ultimately fails – to solemnize a marriage in compliance with the laws of the Commonwealth – between himself and the mother of the child. If this attempted marriage takes place before the child is born, and the child is born during the attempted marriage or within 300 days after it ends, the man may be presumed to be the father of the child.

This means that even if a marriage is later declared invalid there may still be a presumption that the attempted husband is a father.  Chapter 209C, Section 6 outlines this presumption in more depth, but a presumption can also be overcome.  Chapter 209C requires the presumed father to be included in an action trying to establish a different father, except "a husband or former husband shall not be required to be joined as a party if non-paternity of the child has previously been adjudicated" in another proceeding.

This presumption, though written in the statute in traditional gender roles, has been extended to same sex marriages per Hunter v. Rose.

Previous Post: Who is a Legal Parent: Part 1

Next Post: UnMarried with Children - Who is a Legal Parent? Part 3

Thursday, December 17, 2015

Who is a Legal Parent? Part 1

Many have tried to frame the debate over same-sex marriage or LGBT rights to be a debate over the changing definition of parents and family.  But the truth is that the definition of family has been constantly changing and evolving and the definition of a parent has always differed from family to family.  Some people are raised by a male and female parent, and others are raised by a grandparent, or one parent, or two female or two male parents.  And many children have more than two people that function as parents and role models.

The definition of biological parent is clear; requiring a male and female genetic component to create a child.  However, defining the parents of a child is more complicated and can involve legal, psychological, ethical and biological components.  A parent might be a gestational parent, a biological parent, a legal parent, or even a parent by their actions, regardless of relationship.  And these definitions can and typically do overlap.

When these roles don't overlap exactly, the law can end up limiting or expanding the rights and obligations of a parent and sometimes the definition of "legal parent" can override the other definitions, taking children away from someone who might otherwise be considered a parent.  Legal parentage comes with rights and obligations such as the right of access or parenting time with the child, and possibly the obligation of financially supporting the child.  Because these rights and obligations can have a huge impact on the welfare and health of a child it is important to understand the basics of who is and who is not a "legal parent."

In this blog series we will explore this definition of "legal parent" and how it can limit or expand the roles of people otherwise acting as parents to a child.   We will explore the different ways that a parent can become a legal parent, whether or not they are a biological parent or play an active parental role in the child's life.

Who is a Legal Parent?

Part 2: Married with Children (post by Valerie Kua): The Presumption of Legal Parentage to a child born of a Marriage;

Part 3: UnMarried with Children: The Voluntary Acknowledgment of Parentage;

Part 4: 99.9% Probability of Paternity: The Judgment of Paternity and Genetic Market Testing;

Part 5: Adoption (post from Julie Tolek): Becoming the legal parent of a non-biological child through the adoption process (including step-parent adoption);

Part 6: Co-Parent Adoption (guest post from Joyce Kauffman and Patience Crozier): Adoptions in a co-parenting situation, and specifically same-sex relationships and marriages;

Part 7: Three's Company (post from Julie Tolek): Adoptions in a three parent situation;

Plus 3 posts discussing roles that include partial parenting rights:

Part 8: De Facto Parents: Parents who have no biological relation to the child, but have participated in the child’s life as a member of the child’s family;

Part 9: Grandparent Visitation Rights v. De Facto Parents: Grandparent visitation rights in Massachusetts;

Part 10: Guardianship: A person appointed by the court to make non-financial decisions for another person.

Redux: Partanen v. Gallagher - A child's presumptive parent may establish a legal parenting relationship under G. L. c. 209C, § 6 (a) (4), even in the absence of a biological relationship with the child.

Wednesday, November 25, 2015

A Holiday Message: Mediation Style

Skylark Law & Mediation, P.C. and Think Pink Law wish health, happiness and peace for all of our clients, colleagues, mentors, followers, visitors, well-wishers and even our distant relations.

Our practices focus on solutions reached as often as possible through peaceful, rather than adversarial, processes.  Even when we expect to disagree, we try to begin all of our conversations recognizing the basic human dignity of the other involved parties.  Through that approach we hope to reduce the conflict in a world that is full of conflicts that seem unsolvable.

When that fails there will always be funny internet videos to cheer us up.

Tuesday, November 24, 2015

Gotta Find My Purpose: An Update from Skylark and Think Pink Law

One of my favorite NSFW musicals is Avenue Q, where the main character (a puppet / liberal arts graduate), spends most of the story trying to find his purpose in life.  I think it strikes a chord with me because I am constantly re-examining whether my work reflects my values.  When Attorney Trask left Kelsey & Trask, P.C. last year, I was given an opportunity to reconsider how this firm reflected what I, personally, found most important.

Throughout the last year, that self-reflection has resulted in some changes that helped us focus more on our dispute resolution work and resulted in the creation of Skylark Law & Mediation, P.C. - where we help families resolve conflict.
That has become the central theme of our work and with that focus we have removed some practice areas and added others, and we have grown our staff to cover those new practice areas.

First, what have we removed?  Skylark Law & Mediation, P.C. will no longer be handling bankruptcy, criminal defense or firearms cases.  For bankruptcy we recommend The Law Offices of Lee Darst; for criminal defense we recommend Cappetta Law Offices; and for firearms related work we recommend Julie Tolek of Think Pink Law.  Julie recently became an Associate at Skylark Law & Mediation, PC, and will continue to run her own practice as well.

Julie has helped me and Skylark to focus on the areas where we can best help our clients.  To expand the ways in which we help families, we have officially added adoption, prenup/postnup work, and probate mediation as practice areas.  Skyark also continues to have the staff and experience to assist with divorce, mediation, collaborative law, appeals, QDRO preparation, Guardian Ad Litem appointments, conciliation, and consulting services for family law professionals.  Our consulting services range from litigation and mediation advice, to business and marketing advice.

In short, we've found our purpose.  For Julie, she will continue to represent both individual and business clients navigating second amendment compliance, and she will join in the efforts of Skylark Law & Mediation, where we now focus all of our energy on a single purpose: helping families resolve conflict.

Thursday, November 19, 2015

What Divorcing Parents can Learn from #PorteOuverte

On Friday, November 13, 2015 terrorists attacked three locations in Paris, France, killing 129 people, in the most deadly attack on French soil since World War II.  I recently tried to explain to my 6 year old daughter what lessons we can learn from these attacks and from how the world reacted.  Through tears of my own, I explained to her that there are bad people in this world and there are good people.

I told her that unfortunately we can't tell who are the good people and who are the bad people just by looking at them.  But we can tell who are the good people and who are the bad people by what they do.  I explained that bad people had killed good and innocent people without reason because they are controlled by their fear and anger.

But more importantly, I explained how good people reacted.  Despite the natural inclination to protect oneself above all else, many Parisians opened their doors to strangers in the immediate wake of the attacks.  The trending message was called #PorteOuverte, french for Open Door. To open your doors when your city is under attack is an act of faith, not of religious faith, but of faith in human dignity; that despite these attacks the majority of people seeking refuge from the terror would be good people.

The #PorteOuverte movement is in stark contrast to the isolationist reaction of 53% of Americans and 31 U.S. Governors in the wake of these attacks.  It's not that I don't understand their reaction. I do.  I want to protect my daughter and my family from terrorists too.  But protecting her life is not the only thing I need to protect.  My job as a parent is to protect her dignity as well, and to make her a good person.  Good people don't shut their doors to those seeking refuge from terror, because they themselves are afraid.  Good people open their doors.

This is very similar to a lesson that I try to instill in my divorcing clients.  All divorcing spouses experience some form of grief over their divorce, and they all experience it differently.  Parents who divorce also experience a loss regarding their children.  Their children are losing an intact family, and each parent will lose some time with the children.  Separate households as a practical matter means less time with each parent individually.  People naturally grieve this loss and when they act on their fears or angers, without thinking first, their children are harmed.

This is highlighted in a typical example used in the Massachusetts Parent Education Course, which is required for divorcing parents.  The example asks how you should react if your child says to you "Mommy/Daddy said that you didn't pay your child support."  The natural reaction is to be angry that the other parent said this to the child, and to want to defend yourself, especially if this accusation is false or misleading.  Our desire to minimize the loss of our relationship with the child is to say "No, that's not true.  Your Mommy/Daddy is wrong."

But that natural reaction is actually damaging to the child, even if the answer is true, because now the child is in the middle of the argument.  In addition, if I react that way I have now demeaned the other parent in my effort to defend myself.  By defending myself I've hurt the child's own self-esteem because they identify with both parents.  To know the right thing to say I have to stop and think for a moment about what I am trying to accomplish.

The child doesn't need to know which parent is "right," they just need to know that both parents love them and they need to be shown how to resolve conflict in a calm effective manner.  An appropriate response for a young child might be "Thank you for letting me know that Mommy/Daddy said that.  I'll be sure to discuss it with her/him to clear that up."  For an older child who might have fears about money based on the comment you can still address those fears without putting them in the middle of the fight: "Thank you for letting me know that Mommy/Daddy said that.  I'll be sure to discuss it with her/him.  You don't need to worry about money, we'll clear it up. "

We all understand that a divorce is hard and it's natural to want to defend oneself, but we ask our clients to do better to protect their children.  To raise a child who understands and believes in basic human dignity, you have to demonstrate to them that every person deserves to be treated with a minimum amount of respect.  You have to help children understand that sometimes their first reaction, the emotional reaction to grief and fear and anger, should not control their actions.  The action we take in response to an attack or a loss should be informed by our values and our goals, not our fears.

I am hopeful that the initial reaction of some to the Paris attacks, the reaction of fear and anger, will eventually be replaced with a resolve to be better than the terrorists, to help those in need, and to control our fears so that they do not control our actions.

Wednesday, September 30, 2015

What Questions Should You Ask Before Hiring a Divorce Mediator?

There are numerous articles telling you what you should ask a divorce attorney before you hire them and we recently posted our advice on preparing for the attorney-client interview.   As mediators we encourage clients to work with attorneys to make sure that they are fully informed throughout the divorce process, but we also recommend, in most cases, that clients try mediation before having their attorneys negotiate or litigate on their behalf.

We recommend a mediation-first approach because of the many benefits of negotiating on your own behalf with the help of a skilled mediator.  Hiring a mediator, though, can be just as confusing and stressful as hiring a lawyer.  We're hoping this article helps make that process easier:

Finding the Right Mediator for You

Similar to hiring a lawyer you want to make sure that you ask questions about the mediator's practice, cost, and experience, to ensure that your mediator fits your financial circumstances.  Typically more experience means a higher rate and not every case requires the most experienced mediator.

It is also very important that any mediator that you work with is a good personal fit.  A good mediator helps you express your goals and positions in a way that the other side can actually hear.  This leads to better understanding and ultimately settlement, but it all starts with the mediator being able to effectively understand your goals.  If your mediator is not an effective listener and doesn't understand what is important to you then your mediation will likely fail.

First, you need to make sure you understand your own goals and can articulate them.  Ask yourself the following questions before you meet with a mediator:

  • What is the most important issue for you?
  • What do you need? 
  • What do you hope to accomplish in your case? 
  • What do you want your life to look like after your case is over? 
  • What do you want for yourself out of life?
  • What do you want for the other people involved in your case? 
  • If your case involves children, what do your children need and what do you want for your children? 
  • Why are you choosing to meet with a mediator (instead of or in addition to a counselor, coach, attorney or other divorce professional)?

Now that you understand your own goals and needs better, here are the questions that can help you discover if a mediator is right for you:

  • What training have you taken in the field of mediation?
  • If you also practice a different profession (attorney, counselor, etc.), how is your role different as a mediator than in that profession?  
  • What advantages and disadvantages are there to hiring an attorney-mediator vs. a mediator with a financial or mental health background?
  • What are the other options besides mediation for us to resolve our case?
  • What do you think is the most important aspect of mediation?
  • How do you help us meet our goals in mediation?
  • If we disagree with each other during the case about the best way to attain or prioritize our goals, how will you handle that disagreement?

These questions are not about testing the mediator's ability to think on their feet or their experience with your type of case.  Instead, these questions are designed to illicit answers that will help you know whether the mediator is a good fit for you.  After meeting with the mediator you should ask yourself the following questions to decide if you should hire them:

  • Do you need a mediator who can provide legal information or one who is more skilled at finances or communication dynamics?  
  • Does the potential mediator share your approach to problem solving and your style or will their style conflict with yours?  
  • Does the mediator's view of what is important in mediation match with your reasons for choosing mediation as an option?

Going through any type of family dispute can be extremely stressful, and you want to find professionals that reduce that stress by understanding you and your goals.  Click here to learn more about mediation.

Wednesday, September 23, 2015

Collaborative Law & Mediation: So Simple a 1st Grader can Do It!

Recently I attended my child's first grade open house.  Among the many details about policy, projects and pick-ups, the principal shared an interesting theme that they are working on this year.  He described the PAWS principle that they teach our children (aptly named for a school with a bear mascot).

PAWS stands for:

Practice empathy,
Act responsibly,
Work hard, and 
Solve problems together

These principles struck me because they are so basic that we often take them for granted.  In Collaborative Law and Mediation we live by the PAWS principles but often struggle to boil them down to so simple of a form.  If first graders can get it, though, we should be able to make it this easy for adults.

As one six year old recently tried to explain to her fighting parents: "Nobody gets along all the time. But disagreeing sometimes is one thing — treating each other poorly is another."  This viral video of a six year old explaining how to be nice to her parents is both adorable and full of wisdom:

If you are struggling with a family conflict (or know someone who is) consider how you can apply the principles we learn in first grade.  Practice empathy when considering what both sides have to offer each other and how each side may have unique goals and interests.  Act responsibly by doing the work you agree to do, and providing answers to each other's questions.  Work hard to solve hard problems, instead of looking for quick or easy solutions that might be detrimental in the long run.  And most importantly, solve problems together because conflict doesn't start with one person and it never ends with only one person's solution.

Taking positions in litigation or negotiation often fails to reduce conflict because the unilateral attempts to find a quick solution fail all of these tests.  It's so simple a first grader can do it.  Can you?

Tuesday, September 22, 2015

Today, I Didn't Win - A Collaborative Law Success Story

Everyday someone fails.  Sometimes marriages fail and sometimes parents fail.   Sometimes the courts fail families and sometimes lawyers do.  Sometimes mediation fails to help people reach agreements, and sometimes people fail to help themselves.

But sometimes, we also succeed.  There are success stories in family court, mediation and collaborative sessions that save relationships, and parents who overcome divorce to raise good confident children.  Today was one of those success stories and it's one worth sharing:

Today, I didn't fight for my client.  I didn't beat the opposing party.  I didn't solve the problem triumphantly by myself.

Today, I didn't win.

Instead, the opposing counsel, the collaborative coach and I did something together, as a team.  We helped two parents talk.  That might seem simple and easy, but for some parents, in some situations, it is not.  It took preparation and time, and some failures along the way.  It took a process designed to help and it took people willing to believe in the possibility of peace.

Today Collaborative Law resulted in a successful meeting, not just because of the process, but because of the people.  It's not over yet and we might still falter, but today it wasn't about winning, and so it also wasn't about losing.  Today it was just about being parents together, and listening to each other.

Today, we made a family stronger.

Tomorrow, we might fail again, but because of days like today I know that peace even in the face of terrible conflict is always possible.

Saturday, September 19, 2015

3 Amazing Facts about the DOR Child Support Enforcement Division

In Massachusetts the Department of Revenue Child Support Enforcement Division (DOR:CSE) provides child support collection services to both payors and recipients of child support.  Three attorneys from DOR:CSE recently spoke at a Boston Bar Association Family Law Section Brown Bag presentation and shared the following amazing facts:

In 2014 the Massachusetts DOR:CSE collected 
over $646 million dollars in child support.  

DOR:CSE can collect child support in any case where the child support figure is a sum certain and the recipient requests services.  They deduct support directly from the payor's paycheck which reduces the administrative burden of payment on both the payor and recipient.  They also track any arrears which can assist parties in keeping a clear record of child support owed.

Each case at DOR:CSE has an individually assigned case worker 
and each case worker has between 1200 and 1900 cases.  

DOR:CSE has a comprehensive website that can provide a lot of information generally about there services and specifically to a recipient or payor about their account.  They also have a customer service line (1-800-332-2733) that can answer many of the basic questions that you may have.  If you have a more complicated question about your case, you should contact your case worker directly.

Despite the number of cases, DOR:CSE case workers are 
required to respond to all inquiries within 72 hours.

Case workers can be extremely helpful in addressing any issues with your specific child support case.  DOR:CSE can assist with reviewing support orders for consistency with the current child support guidelines and help with asking the court to modify the amount of the child support if necessary.  The can also assist with collection and enforcement remedies, such as bank levies, tax refund intercepts and credit reporting, to collect overdue support.

Click here if you want more information about the services available from DOR:CSE (and the services that are NOT available).

If you have a DOR:CSE hearing and need further assistance click here for more information.

Finally, if you found this information helpful, check out this site for upcoming programs from the BBA Family Law Section, including our next program on October 6:  How to Effectively Utilize the Various Settlement Processes Offered by the Court.

Thursday, September 17, 2015

What Questions Should You Ask Before Hiring an Attorney: a Mediator's Perspective

Experiencing any type of legal dispute is stressful and many people walk into a lawyer's office nervous and anxious about the experience.  In order to reduce that anxiety and ensure that you hire someone who is a good fit for your case, it is important to consider what questions you want to ask and to enter that meeting prepared.

There are numerous articles telling you what you should ask a divorce attorney before you hire them. The typical advice ranges from the obvious (what are their billing rates) to the not-so-obvious (what percentage of their practice is devoted to your type of case).   As a mediator, though, my advice is a little more personal.

Does your lawyer understand your goals?

While it is important to ask questions about the lawyer's practice, cost and experience, it is also very important that any counsel that you hire understands your goals.   The type of lawyer you choose to meet with and hire can have a significant impact on how you view conflict in your case and whether those conflicts are resolved or inflamed (this is what we have previously termed the Observer Effect in Family Conflict).  If the lawyer doesn't value or agree with your goals then your are guaranteed to have a negative experience in your case.

First, you need to make sure you understand your own goals and can articulate them.  Ask yourself the following questions before you meet with an attorney:

  • What is the most important issue for you?
  • What do you need? 
  • What do you hope to accomplish in your case? 
  • What do you want your life to look like after your case is over? 
  • What do you want for yourself out of life?
  • What do you want for the other people involved in your case? 
  • If your case involves children, what do your children need and what do you want for your children? 
  • Why are you choosing to meet with an attorney (instead of or in addition to a counselor, coach, mediator or other divorce professional)?

Now you are prepared to explain to your potential attorney what your goals and needs are and to then ask the attorney:

  • Do you understand my goals?
  • What are the different options for me to accomplish what I want in my case?
  • How is your role different in each option, for instance if I choose mediation what would your role be?
  • How do you prioritize potentially conflicting goals, such as reducing conflict vs. getting the best deal?
  • If we disagree during the case about the best way for me to attain or prioritize my goals, how will you handle that disagreement?

These questions are not about testing the attorney's ability to think on their feet or their experience with your type of case.  Instead, these questions are designed to illicit answers that will help you know whether this attorney is a good fit for you.  Do they share your approach and your style or will their style conflict with yours?  Going through any type of family dispute can be extremely stressful, and you want to find an attorney that reduces that stress by understanding you and your goals.

I once heard an attorney tell a client that the client got to set the destination, but that the attorney was the one who drove the bus.  If you're concerned about who the attorney might run over getting to your destination then you may want to ensure that you hire an attorney who lets you navigate too.

Friday, August 14, 2015

Brady Federal Deflategate Appeal: A Mediator's View

Tom Brady along with the National Football League Player's Association are currently in a federal lawsuit in a U.S. District Court against the National Football League.  The case centers on the appropriate use of power by the NFL commissioner to act as labor arbitrator, but is that really what it is about?

How did the loss of a small amount of air in a few footballs balloon into a federal case?  

Attorney James M. Lynch of Stevenson, Lynch & Owens, P.C. recently wrote an excellent post outlining the legal arguments that both sides have, and why, in his opinion, Brady has the stronger case: Brady Federal Deflategate Appeal: A Lawyer’s View.   As a lawyer, I found the analysis intriguing, but as a mediator, I wonder if the legal analysis of this case misses the point.

Tom Brady isn't in court to stand up for labor unions.  The fans and the public don't care that much about whether Roger Goodell's decision was consistent with the "practices of industry" or the collective bargaining agreement.  The settlement conference on August 12th outlined this disconnect because very little of the discussion was actually about the case law, yet that case law might control the outcome of the case.  So why even schedule two settlement conferences if they don't help decide the case?  Mediators know the answer: What someone is asking for is not always what they actually want.

Mediators are trained to actively listen in order to get to the interests that are underneath positions, to help figure out what both sides really want.  While the settlement conference was run by a Judge, and not a mediator, there were many similarities to mediation.

Courtroom Sketch of Settlement Conference by
Jane Rosenberg, Reuters/Deadspin
The lawyers for Tom Brady and the NFLPA at the August 12 settlement conference made small concessions in their arguments, for instance, allowing that maybe Brady should have cooperated more.  Why would they make any concession that could hurt their case?  It shows they're willing to settle, which is an invitation to the other side and also a signal to the Judge that they're trying to do what he wants them to do.  A willingness to settle is not a sign of weakness, but rather a recognition of the risks of fighting longer and the benefits of ending the dispute.

The NFL on the other hand, continued to point to the letter of the law in the CBA, refusing to acknowledge any of the weaknesses in their case that Judge Berman was pointing out.  This is not just a hard negotiating tactic.  It shows us something else about the NFL's interests in taking this matter to court.  For some reason the NFL wants to make an example of this particular case.  One possible reason is that Tom Brady is a high profile player, a chance for the league to show no-one is above "the law".  Another possible reason for the NFL fighting this case is a reaction (or over-reaction) to the significant amount of criticism the league has received in the past year over suspensions in other cases.

Recognizing that the NFL is more interested in the public relations battle than a court case is something the Patriots and the NFLPA seem to be missing or misinterpreting.   The Patriots have continued to release e-mails, and essentially fight the PR battle in an attempt to discredit the NFL.  From a lawyer's perspective that might make sense.  If the NFL loses then you win, right?

However, if what you really want is a settlement, that hopefully involves no games lost for your star quarterback, then fighting the PR battle is actually a bad move.  Every ding in the NFL's shield means they have to fight back harder.  It doesn't give them a reason to settle; it does exactly the opposite.

Mediators are trained to help parties find solutions where both parties can meet some or all of their goals.  There a solution here where the NFL and Tom Brady and the NFLPA all get what they want. In fact, there are multiple solutions that would be better for everyone involved than a lengthy trial.  The reason Judge Berman would schedule two settlement conferences right away is because he understands that possibility.  Now we will see if the NFL and Tom Brady understand that as well.

Monday, August 10, 2015

The Future of 'The Night Circus' is a Marital Asset

In Massachusetts, the asset division statute (M.G.L. c. 208 s 34), grants the court significant discretion and authority to assign assets owned by one spouse to the other in a divorce case in order to reach an "equitable" division.  The trial court has broad discretion as to the treatment of all types of assets owned by either spouse, but before the court can determine an equitable division, the assets themselves must first be defined and valued.  With many assets the value is straightforward, and there are accepted ways of valuing real estate, personal property and business interests.  But some assets, such as stock options, are very difficult to value reliably.

What happens when the value of a marital asset is uncertain?

The Appeals Court, in Canisius v. Morgenstern, addressed this question in regards to potential royalties and movie rights for the author of The Night Circus.  The trial court Judge had excluded future income from the sale of the wife's book from the asset division because "the present value of future income of intellectual property is too speculative to consider."  The husband appealed, and the appeals court disagreed with the trial Judge:
"With respect to the possibility of current valuation referenced in S.L. v. R.L., supra, case law indicates that the uncertainty of value of a party's interest does not necessarily require its exclusion from the marital estate."
The Court goes on to point out that previous cases have clearly outlined a preference for present division of all assets, but "where a present valuation of [an asset] is uncertain or impractical, the better practice is to order that any future recovery or payment be divided, if and when received, according to a formula fixed in the property assignment." 

The court distinguishes the royalties form the existing book in this case from "future earning potential", which would be more like income she might receive from writing a second book.  The wife argued that the unknown nature of the royalties were similar to patents, which have been excluded from division in other cases.  However, the Appeals Court disagreed, characterizing the book royalties as more similar to a pension.

The Appeals Court went on to point out, though, that there may be good reasons why the division of those future earnings might no be equal.
"Among other things, the future book sales, upon which the royalties are based, may be enhanced by the postdivorce efforts of the writer-spouse through promotion, marketing, brand building, and the creation of subsequent works (which may generate interest in an earlier work)... The point we make here is, with the passage of time, the respective contributions of the parties to the marital partnership, which allowed for the creation of the work, may become attenuated. A judge properly may consider such factors, in conjunction with all of the G. L. c. 208, § 34, factors, in determining the percentages of any future payments to be allocated between the parties. "  
Given the significantly long-term upon which royalties might be received on this work, this seems like an excellent opportunity for the parties to revisit their settlement options before retrying this issue in the lower court.

Sunday, August 9, 2015

Collaborative Kayaking

Collaborative Law is a practice that requires finding the right balance in many different ways.  The goal of the Collaborative process is to reach agreements through negotiation and to avoid the expensive and emotional experience of Court.  Clients and their counsel must find a balance between individual advocacy and shared goals in order to reach solutions.  Finding this balance can sometimes be difficult and challenging, but also rewarding.

Kayaking is a great metaphor for collaborative practice, because it also requires balance and work in order to have a rewarding experience.  On Thursday, July 23, 2014 some members of the Massachusetts Collaborative Law Council decided to bring the metaphor to life by joining each other for a summer afternoon of kayaking at Lake Cochituate in Natick.  Here are some pictures from the event:

If you have a dispute, ask yourself if you want professionals handling your case that can't get along?  Choosing one attorney to represent you in a traditional litigation or negotiation, leaves completely to chance who the other side hires.  Why take that risk?  If you choose a process like Collaborative Law, you increase the chances significantly that the professionals assisting you will know each other and know how to work together efficiently.

See more at: http://skylarkmediation.com/collaborative

Wednesday, August 5, 2015

How Long is a Marriage? It Depends why you are asking!

The Massachusetts Appeals Court has decided another case interpreting  the Alimony Reform Act, that I will likely refer to as that "length of the marriage" case rather than trying to pronounce the actual name.  In Valaskatgis v. Valaskatgis, the Appeals Court was faced with the question of whether the Alimony Reform Act's definition for "length of the marriage" also applied to property division questions.

Question: Does Length of the Marriage (for Alimony)  =  
Length of the Marriage (for Property Division)?

Answer:  No.

Why does it matter?

The Alimony Reform Act defines length of the marriage as:
"the number of months from the date of legal marriage to the date of service of a complaint or petition for divorce or separate support duly filed in a court of the commonwealth or another court with jurisdiction to terminate the marriage; provided, however, that the court may increase the length of the marriage if there is evidence that the parties’ economic marital partnership began during their cohabitation period prior to the marriage." M.G.L. c. 208 § 48
The Property Division statute lists "length of the marriage" as one of the numerous factors that the court shall consider "in fixing the nature and value of the property, if any, to be so assigned" from one party to the other.  See M.G.L. c. 208 § 34 

If these are the same, then property acquired after the date of filing a divorce complaint would not be part of the property division discussion.  That was the argument the husband was making in Valaksagtis Valaskagis Vakaslagis Valaskatgis, because he received $96,000 in overtime income after the divorce filing but before the date of the divorce.

The Appeals Court disagreed and even though the name of the case is not simple, the court's theory is pretty straightforward:  "Nothing in the language of § 48 (or for that matter, in the language of the Alimony Reform Act more generally) indicates or suggests that its definitions are to be exported beyond §§ 49 through 55."  Which essentially means that longstanding case law regarding property acquired after the Complaint for Divorce filing still stands, and the Judge has discretion to divide that property in consideration of all the § 34 factors.

Friday, July 24, 2015

Are Divorce Lawyers regularly violating the Civility Guidelines?

At a recent event celebrating the 15th Anniversary of the Massachusetts Collaborative Law Council, one of it's founders, Rita Pollak, spoke about her reasons for joining the Collaborative Law movement.  Among those reasons was a recognition that the practice of family law in the courts was becoming less civil, and more hostile.  This is a sentiment that I have heard echoed by many, and have experienced myself.   Too many of the lawyers who handle family law cases fail to understand the importance of civility, and act without thinking about the true impact of their actions.  In fact, I believe many lawyers think they are acting in their client's best interest when in fact they are modeling bad behavior and bad habits which will harm their clients and their client's family for years after their case is over.

The Massachusetts Bar Association approved Civility Guidelines for Family Law Attorneys in 2006.  These guidelines should be required reading for all family law attorneys and we should refer back to them whenever we're unsure about our plan of action in a case.  Even small failures in a divorce case can have lasting impact on families and children.  Consider the following typical example:

A wife gets an e-mail from her husband asking her why her attorney hasn't responded to his attorney about the financial information they are supposed to exchange.  She calls her attorney upset that her husband is bugging her about this and complains that she doesn't want to talk to him about the divorce.  That's why she's paying the attorney.  What should the wife's attorney do?

"A lawyer’s incivility may unwittingly fuel already volatile circumstances or encourage a client to become hostile and unreasonable."

As a litigator, the wife's attorney sees it as her responsibility to solve all of these problems for her client.  So she writes a letter to opposing counsel with the requested financial information, and a demand that the husband "cease and desist" all communication with the wife except in reference to the child.

This might be an appropriate response to protect the wife, if the husband's e-mails were aggressive or threatening.  But if the husband simply happens to be in more of a hurry to get divorced than the wife, the lawyer's demand that they cease all communication will do more harm than good.  That demand takes a small discomfort by the wife and turns it into a highly contentious issue, pretty much guaranteed to make the husband defensive.  It also models a communication style for the wife that encourages all further disputes be stunted or go through the lawyers.  While that is advantageous for the lawyers financially, it is detrimental to the family, financially and emotionally.

The civility guidelines point out:
"Domestic relations cases are unique in that they center primarily around children, family members and interpersonal relationships. Divorce is often a painful and stressful process. Clients and other family members may be in crisis and emotions often run high when a couple separates or parties are involved in a court case. Lawyers, however, set the tone for their clients. A lawyer’s incivility may unwittingly fuel already volatile circumstances or encourage a client to become hostile and unreasonable. The best domestic relations practitioners are holistic in their approach and focus on their role as a counselor as well as zealous advocate for the client. Lack of civility may have devastating, lifelong personal consequences for the client, the client’s children and the client’s most important relationships." (emphasis added)
The wife's lawyer in this example violated the civility guidelines, by setting a tone of hostility between the clients.  That lawyer had an opportunity to help her client by having a conversation about the best way to communicate with the husband and how she might respond in a way that encourages more productive future communication.  The wife's lawyer also could have picked up the phone and spoken with the husband's lawyer, expressing how her client was feeling and encouraging the husband's lawyer to have a constructive conversation with his client about being patient in the process and how he can best communicate with the wife.

All divorce lawyers need to be thoughtful about how every part of their practice models good or bad behavior for clients in an emotional crisis.  When choosing a plan of action, practitioners should ask "Does this help my client and her family long-term?"  Answering that question will seldom result in sending an aggressive letter or e-mail.  As long as lawyers fail to model effective communication, more and more people will turn to mediation and collaborative practitioners to find a divorce process that respects families, instead of destroying them.

Monday, July 20, 2015

Parenting Time, not Visitation

As of July 15, 2015, the Massachusetts Family Court's website and forms have been updated to use the term "parenting time" in lieu of the outdated term "visitation."  Chief Justice Angela OrdoƱez has made this long overdue change recognizing the national trend away from the pejorative term "visitation", which implies that one parent has less of a role than the other.

This was simply the right thing to do and we applaud the move.

Thursday, July 2, 2015

Collaborative Law Training with Justin Kelsey

Currently, four of the attorneys at Skylark Law & Mediation are trained in Collaborative Law, an out-of-court dispute resolution process.  The Collaborative Law process may be used to resolve conflict in all types of matters, including family, business, and probate disputes.  The Collaborative Law training is an excellent opportunity to add valuable skills to your conflict resolution toolbox.

Justin Kelsey, the owner of Skylark Law & Mediation, PC, will be one of the trainers at the upcoming 2015 Introductory Collaborative Training presented by the Massachusetts Collaborative Law Council.

This training meets the standards set forth by the International Academy of Collaborative Professionals (“IACP”), and those completing this training are eligible for membership in the Massachusetts Collaborative Law Council and the IACP.  More importantly, by participating in this training you would immediately become part of a growing, cutting-edge international community of Collaborative Law practitioners.

For more information or to register click here.

Divorce Mediation Training with Justin Kelsey

At Skylark Law & Mediation, PC all of our attorneys and staff are trained mediators.  Even for those who do not mediate, the skills involved in mediation training assist in all forms of conflict resolution and negotiation.  If you are interested in learning more, check out the upcoming Family Law Mediation Workshop 2015 - offered by Massachusetts Continuing Legal Education.

Justin Kelsey, the owner of Skylark Law & Mediation, PC and an MCFM Certified Mediator will be one of the trainers on the first day.

For more information or to register click here.

Top 6 Out-Of-Office E-mail Notices

Getting an out-of-office auto-reply to an e-mail you send can be frustrating, especially when you were hoping for a quick response to your inquiry.  However, they are a necessary evil in a world where everyone expects instant replies to electronic communications, at least for those of us who still intend to take vacations from the office.

I expect that my colleagues or clients will feel some disappointment when they get that immediate reply to their e-mail only to discover it's not a real reply but rather a notice that I won't be available for the next few days.  About two years ago I decided to try and lessen the impact of that disappointment with a little humor.  Judging by the amount of amused responses I received back, below are my top six auto-reply out-of-office messages:

Subject: Out of Office - "Interrupt your Vacation"
I am currently out of the office on vacation.

I know I'm supposed to say that I'll have limited access to email and won't be able to respond until I return - but that's not true. My iPad will be with me and I can respond if I need to and will probably be responding to some e-mails.

However, I am worried that the more I take my iPad out on vacation, the more it will be thrown in my face when my girls get old enough to bring their electronic devices on vacation.

Therefore, I'm going to try an experiment. I'm going to leave the decision in your hands:  If your email truly is urgent and important enough to risk increasing the teenage angst I will inevitably be dealing with when both my girls get older, then please resend it with the subject heading: "interrupt your vacation" and I'll try to respond to it promptly.

If you think someone else at our firm might be able to help you, feel free to call 508.655.5980 and speak to Melissa or Valerie.  Otherwise, I'll respond when I return on July 8th.  Enjoy your 4th of July!

Subject: Out of Office - "Comparative Urgency Rating"
I'm on vacation until September 5, 2013. While on vacation I will not respond to most of my incoming emails because, being on vacation, I'm likely to be frolicking on a beach or something, and reading emails is incompatible with frolicking.

I may read your email when taking a break from the beach, but if your request is urgent you should contact Valerie or Melissa at 508.655.5980.

If you think your request cannot be handled by Val or Melissa compare it to the examples in the table below and pick your comparative Urgency Rating of 1 to 5.  Then resend your email but start the subject line with "Urgency Rating of ___":

Urgency Rating of 1: You noticed my company has a mobile website and you think you can make it better.
Urgency Rating of 2: Your cat just yawned and you want to show me a picture.
Urgency Rating of 3: You want me to volunteer for a committee.
Urgency Rating of 4: You are a paying client and only my unique brand of straight talk, good looks, and being tall can solve your problem this week.
Urgency Rating of 5: You are Joss Whedon.

Subject: Out of Office - "Sad Batman"
I am currently out of gotham on vacation.

But don't be as sad as Batman, I'll be back before you know it.

I am returning to the office on Monday, July 7, 2014.  Please give Melissa or Valerie a call at 508.655.5980 if you need immediate assistance.

Otherwise, I'll respond to your e-mail when I return on July 7th.  Enjoy your 4th of July!

Subject: Out of Office - "Meditation"
Please follow these instructions:

Take a deep breath and close your eyes.  Slowly let out your breath and continue to breathe slowly.  Imagine that you are leaning back on a reclining beach chair.  Feel the sand between your toes and the sun on your skin.  Listen to the soft repeating woosh of the ocean waves.   Reach out your right hand and grab a drink.  The ice sloshes around as you bring the straw to your mouth and sip.  Ahhhhhhh.

I am currently out of the office on vacation and now hopefully you feel like you are there with me.  Unless of course, you actually followed the directions in which case your eyes are still closed and you're holding your breath.  Quick, let it out!

That's better.  Now, since you're not actually on the beach with me, I won't be able to respond to your request until I return on August 25, 2014.  If you need assistance before then please give Melissa or Valerie a call at 508.655.5980.

Subject: Out of Office - "Let it Go"
Sung to the melody of Let it Go:

The snow glows white in Metro West tonight
Not a Kelsey to be seen
He's leaving on his vacation
And it looks like it's a dream.

His kids are howling like a swirling storm inside
Couldn't keep it in, heaven knows they tried!
He'll let them in, He'll let them see

They're taking their first trip to see Disney
You're here, don't fear, you didn't know
Well, now you know!
Let it go, let it go

He's only gone one week more
Let it go, let it go
Melissa and Val are available for any emergencies.

Okay, that last line needs some work, but you get the point.  I will be returning to the office on Monday, December 15, 2014.  I may check e-mails while away, or I may be spending the whole time waiting in line to meet Elsa and Anna.  If you want to build a snowman, or if you need an immediate response please contact Valerie or Melissa at 508.655.5980.

Subject: Out of Office - "End of the World"
On Friday, June 26, 2015, SCOTUS ruled on marriage equality and 5 out of 9 justices determined that all 50 states should allow same-sex marriages.  The dissenting opinions foretell the end of democracy and possibly worse.  So I'm going to take a short vacation in case the world ends.

If you're all still here on Wednesday, July 1, 2015, then I will return to the office. If you need an immediate response please contact Valerie or Melissa at 508.655.5980.

Of course, I don't always come up with these on my own but use the internet for inspiration.  Here are a few of the sites I drew inspiration from:

How to Write the Perfect Out-Of-Office Message
10 Hilarious Out of Office Messages you Will Want to Copy

Saturday, June 27, 2015

SCOTUS rules on Marriage Equality: the tl;dr version

The U.S. Supreme Court legalized same-sex marriage in all 50 states on Friday, June 26, 2015 in Obergefell v. Hodges, a 103 page decision which we read so you don't have to.  You should, but seriously, most of you probably won't.  Many people will just read that headline and know that there has been an important change in the status of legal relationships in the U.S.  Both the majority and dissents agree on one thing, this is a significant and far-reaching decision.

For a good overview of the decision itself and the legal impact, visit our friend's blog over at Finn & Eaton: Obergefell v. Hodges: Supreme Court Rules on Same-Sex Marriage, Part 2.

For now we're posting the tl;dr version of the majority and dissenting opinions:

Here is what each opinion seems to say about the author's view of marriage:

Robert's Dissent:    Marriage is an institution.
Scalia's Dissent:     Marriage limits your expression.
Thomas's Dissent:  Marriage has nothing to do with liberty.
Alito's Dissent:       Marriage is for procreation.

Kennedy's Majority Opinion:  All you need is love.

Below is a slightly more in depth analysis:

Majority Opinion written by Justice Kennedy and joined by Ginsburg, Breyer, Sotomayor and Kagan

tl;dr: Marriage is a fundamental right under 14th amendment due process and extends to same-sex couples because there is no rationale to deny benefits based on the societal reasons for promoting marriage.  This was not based on a typical equal protection analysis, but rather focused on the nature of marriage and why it's important in today's society and therefore represents an inalienable liberty.

Justice Roberts' dissent joined by Scalia and Thomas

tl;dr: Extending due process rights to marriage = judicial law-making because the history of marriage is clear and the legislative process was doing just fine.  Criticizes the majority for ignoring typical equal protection analysis.

Justice Scalia's dissent joined by Thomas

tl;dr: Scalia really wants you to know that he agrees with Roberts but wants to drop the pretense that he "respectfully dissents".  Also, Californians aren't real westerners and hippies have more fun (seriously, he said that).

Justice Thomas' dissent joined by Scalia

tl;dr: You think you know what "liberty" is? Well, do I have an irrelevant history lesson for you.  It basically involves proving that liberty and dignity can't be given to you by the government so people shouldn't care if the government endorses slavery or traditional marriage.  Change comes from within, man, so don't look to us for help. 

Justice Alito's dissent joined by Scalia and Thomas

tl;dr: Same sex marriage might have dire consequences... none of which he's willing to describe in detail other than to imply that religious freedom and democracy itself will be damaged by this decision.  

Friday, May 29, 2015

3 Prenup Drafting Tips from the Appeals Court: Pisano v. Pisano

The Appeals Court ruled, in Pisano v. Pisano, on numerous issues involving a bifurcated trial, a prenuptial agreement, temporary alimony and family loans.  The primary issues in the case all could have been prevented by inclusion of clear provisions in the Prenuptial Agreement.  This is not a criticism of the drafters, because in many instances the soon to be married couple don't want to deal with these types of specifics.  However, this case demonstrates the importance of clear and thoughtful decision-making and drafting when creating a Prenuptial Agreement.

1. Trial Judge's determination that the Prenuptial Agreement excludes income derived from separate assets from consideration of alimony - UPHELD.

While the prenup did not explicitly say "income from separate assets is excluded from the calculation of alimony" as clearly as it could have, the appeals court upheld this decision finding that the language of the prenup clearly intended to exclude income from separate assets from being divided.  More clear prenup drafting on the issue of "income from separate assets" could have avoided the need for an appeal on this issue.

Also of note here, the Appeals Court points out that the "modification of rights under G. L. c. 208, § 34, does not, in the circumstances, act as an 'unknowing waiver' of the husband's alimony rights."  In other words, the Alimony Reform Act does not automatically invalidate prenup limitations on alimony just because the law changed.

2. Order for Husband to reimburse temporary alimony paid from separate assets. - OVERTURNED

The Husband had requested as a temporary order of $12,000 per month in alimony to be paid from the Wife to him, and the Wife submitted a more modest proposed order of $1,500 per month.  The Judge's order was $2,000 per month and $32,000 total was paid before the alimony was suspended.  The Appeals Court did not agree that the payment of temporary alimony unjustly enriched the Husband, especially since the Wife had made a similar proposal rather than arguing that alimony was excluded completely due to the prenuptial agreement.

While the Wife, in hindsight, probably wishes she had forced the issue at temporary orders more, I'm not sure that would have really made a difference.  The SJC has already ruled that temporary alimony has a different purpose and nature than a final order of alimony.  This decision is consistent with that earlier ruling, regardless of how the court got there.

Also of note here, the Appeals Court points out that the prenup doesn't mention "temporary alimony."  Since the Court's are treating this as essentially a different category of alimony, prenuptial agreements should address temporary alimony specifically or take the risk that it's considered separately.

3. Order for Wife to be solely responsible for a $100,000 liability created during the marriage. - UPHELD

The Wife borrowed funds during the marriage to pay what she termed "legitimate familial obligations."  The Husband indicated the possibility of her obtaining those funds from other sources, and claimed to not know she was borrowing the funds.  Based partially on how the funds were spent (to support adult children of the wife's previous husband), the lower court agreed with the Husband.  The Appeals court found no abuse of discretion in this determination.

Also of note, here, the Appeals Court points out that the prenup "contains no specific provision concerning the payment of marital liabilities..."  This is another area where a clear prenup provision on the issue of the marital debt could have avoided significant legal fees to fight the issue.

For mediation or representation of Prenuptial Agreements contact Attorney Kelsey for a consultation.

Tuesday, May 26, 2015

SJC Case Summary: Sperm Donor is not a Legal Parent entitled to Notice of Adoption

Guest Post by Beth Aarons, a Mediator and Collaboratively trained attorney who is of counsel to Skylark Law & Mediation, PC and who also has her own practice in Newtonville.  Beth is available for consultation on adoptions, like the one discussed below:

In a recent slip opinion Adoption of a Minor, SJC-11797, the Massachusetts Supreme Judicial Court (SJC) determined that a known sperm donor of a child born to a married same-sex couple is not a legal parent of the child who would be entitled to notice of the child’s adoption.

J.S. and V.K., two women legally married to each other, conceived a child through artificial insemination with a known sperm donor.  The child’s birth certificate names J.S. and V.K. as the legal parents and to protect their rights they sought to jointly adopt their son to ensure equal recognition of their parentage outside of Massachusetts.  The Probate and Family Court declined to allow the adoption to proceed absent legal notice to the sperm donor, whose identity was known to the petitioners.

The SJC notes in its discussion that the notice requirements for an adoption are statutory, and the plain language of the statute, G.L. c. 210, §2, 4 provides that notice must be given only to those whose consent  must be obtained, which includes that of “the child to be adopted, if above the age of twelve; of the child’s spouse, if any; of the lawful parents, who may be previous adoptive parents, or surviving parent; or of the mother only if the child was born out of wedlock and not previously adopted.”  In this particular case, the only statutory category the sperm donor could possibly fall into is that of a “lawful parent,” and the lower Court had already found that J.S. and V.K. were the child’s lawful parents.

Other parts of the SJC’s analysis included confirmation that the mere fact of donation of genetic material towards another individual’s conception of a child does not in and of itself create parental rights and responsibilities in the donor.  The donor would need to take additional proactive measures to have himself or herself adjudicated the legal parent of the resulting child to establish legal parentage, as well as show a substantial parent-child relationship and intent to become established as a legal parent of the resulting child.

In the absence of the known sperm donor legally establishing any parental rights to the child prior to the time of the adoption petition, the mere fact that he could potentially claim parental rights in the future does not entitle him to notice as a legal parent.  He had clearly donated sperm with the intent of J.S. and V.K. becoming the legal parents of any resulting child.

As long as other states continue refusing to recognize the parent-child relationship of same-sex couples and their children, same-sex couples will continue to have to adopt their own children to ensure their parental rights are recognized in other jurisdictions.  This case helps clarify the notice requirements and alleviates some of the administrative burden for the adoption proceedings by not requiring same-sex married couples in Massachusetts to notify the known sperm donor.

This case demonstrates just one way in which defining legal parentage can be complicated.  Look for our upcoming blog series expanding on the many ways that legal parentage can be defined, including a guest post from Joyce Kauffman and Patience Crozier exploring Co-parent Adoption and the impact of the Adoption of a Minor case discussed above.

Wednesday, May 20, 2015

Settling Conflict with the KISS Principle in 5 Simple Steps

There is a design principle in engineering that was made popular by the U.S. Navy in the sixties called "Keep It Simple, Stupid" or KISS for short.  The KISS principle is about valuing simplicity in design in order to make things less likely to break and easier to fix when they do break.  As a fan of this principle, I was very impressed with Rackham Karlsson's recent blog post: Collaborative Divorce in the Simplest Terms Possible in which he does just that, explains Collaborative Divorce as simply as possible.

Rackham's post has inspired me to try and explain the work I do in the simplest terms possible using the KISS principle and the Up-Goer Five Text Editor, a site that forces you to explain an idea using only the 1000 most used words in the English language.

Here is a typical explanation of what I do:
In my work I encourage clients to settle disputes outside of court, whether through collaborative law, mediation, or other other out-of-court processes, by using interest-based negotiation techniques to resolve conflict. 
See the problem?  What the heck is interest-based negotiation?  I have over-lawyered the description of my own job without even realizing it!

So here is my new description trying to keep it simple:
There are many situations where people find themselves in a fight.  That fight could be about their work or their home life, but either way it makes their life worse.  Many people need help to end the fight.  In my work, I help people explain what they are fighting about, by learning what they want and why they want it.  When they can understand the other person's "why" we can usually end the fight with both people getting "what" they need. 
I do this using five important steps:
Step 1: Decide on how to talk (and with how many people helping).
Step 2: Share what each side knows.
Step 3: Share what each side wants and why.
Step 4: Come up with many ideas
Step 5: Decide on the best idea for both people.
If even one step is missed, the fight usually continues, but when people think through all of these steps they are usually happy with the end of the fight.
Can you explain what you do using only the 1,000 most common words?  I dare you to try it here, and post your answer in the comments section!

Tuesday, May 12, 2015

Alimony: You get what you Need!

In Reed v. Reed, a recent unpublished (Rule 1:28) decision, the Appeals Court provided a summary of the current definition of need in Massachusetts.  Alimony is defined in the Alimony Reform Act as "the payment of support from a spouse, who has the ability to pay, to a spouse in need of support for a reasonable length of time, under a court order."  This means that need is one of the three main components of alimony and when it comes to calculating alimony:
Need "is not based on the minimum life necessities of the spouse, but rather is measured by 'the amount necessary to support a spouse in a manner consistent with the marital life-style.'" Reed quoting Zaleski v. Zaleski
For general term alimony, the most typically awarded type of alimony, the statute also limits the amount of alimony to "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."(emphasis added)  In Reed, the Appeals Court points out the importance of that "or".

The trial Judge, in Reed, used the differential formula (though apparently did the math wrong), and the husband argued that the wife's "need" was actually lower.  The Appeals Court did not agree, and also indicated that "the statute plainly allows a judge to base the alimony award on need OR the income differential formula." (four types of emphasis added)

In this graph that would mean the trial Judge has discretion to award anything in the purple area up through the dark blue line, so long as the payor has an ability to pay.  But what if "need" exceeds the differential formula?  Can the Judge award a figure in the blue section of the graph above?  If "need" exceeds the differential formula is the cap higher?  

According to the Appeals Court in Reed, and despite the fact that this answer was not necessary for the decision in this case, the Court answered YES:  "A judge has discretion to exceed the thirty-five percent benchmark on the basis of the parties' marital spending patterns."

While Rule 1:28 decisions are not binding precedent, the Appeals Court has sent a clear message regarding their interpretation of the SJC's prior decisions on alimony.  Alimony recipients might not get what they want, but they will likely get what they need.

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