Saturday, January 31, 2015

Ditching the Briefcase for a Backpack - The Tom Bihn Synapse 25

In 2012 we sent our office manager (and now recently trained mediator), Melissa Day, to the ABA Tech Show with one mission:  bring back a plan for transitioning our office to a paperless office.  We have discovered that in the legal business this is never a complete process, but an ongoing mission.  Becoming a paperless office requires finding the right balance with clients and other professionals who aren't ready to take that leap, as well as constantly reevaluating the technology we use.

Three years later, it is probably the most important practice management decision we've made, and we're still learning all of the ways it impacts our office.  For the most part, we believe having everything stored electronically gives us more flexibility with our client interactions, storage options, backup, and recently I took a second look at that most iconic of business/lawyer technology: the briefcase.

Without Briefs I Don't need a Briefcase!

While briefcases have evolved, they ultimately are still designed for something I'm not carrying anymore.  The briefcase is, by definition, meant to carry paper briefs, and most are poorly designed to carry a laptop, tablets, smartphone and all the cords that go with them.  Of course, that's no surprise because lawyers aren't exactly the quickest at adopting new technologies or trends (want a ridiculous example: it seems pantsuits are still frowned upon for women in big law).

It is my experience that small firms stand out by being the first to adopt new trends, while big law lags behind.  Julie Tolek, one of the attorney/mediators in our office explains this simply by describing herself as a "lawyer for humans."  Rather than carry a square case better suited for a robot, I decided to take a closer look at the human functions I really want out of my work bag.  My priorities were:
  1. Protect my Laptop
  2. Protect my Tablet
  3. Have enough space for the other work related items I need to carry (business cards and other marketing swag, cords, pen drives, water bottle, etc.)
  4. Work well for Travel
  5. Be comfortable
  6. Not look horrible
This is a pretty simple list and many laptop bags will fit these priorities fairly well, but only one really stood out: the Tom Bihn Synapse 25.

Yes, that is a Bat'leth letter opener.
You won't find a Tom Bihn in your local big box store and frankly I might not have heard about them if not for some great reviews that are already available online including a thorough review from the Snarky Nomad and a review on the ABA's site by a fellow legal techie, Heidi Alexander.  Since those other reviews have covered in great depth the functionality and features of the Synapse, I'm just going to tell you how it answered the needs of this paperless lawyer:

Protection: My first priority was protecting the investments that I carry around and which allow me to maintain a paperless office: laptops and tablets.  The Synapse has a great design for carrying and accessing my laptop (and for traveling with it through TSA checkpoints), using a rails system and an interior cache.  More importantly, the bag itself has a durable feel to it and I am very comfortable that my laptop and tablet are safe in this bag.

All the Small Things:   Tom Bihn has considered so many tiny design details all of which taken individually would be impressive on their own, but which together add up to a significant improvement over other laptop bag options.

Tom Bihn's accessories page is a very exciting place for an organization geek.  There are numerous options for thoughtfully arranging the items you pack into the interior of your bag, including smaller bags, and even smaller bags, and... you get the idea.  Anything that helps me organize my work bag and access what I need from it quickly helps me do my job more efficiently.

My favorite accessory by far is the snake charmer, which fits perfectly in the bottom pocket of the Synapse and holds all my laptop accessories and cords in one place.  I don't know why it never occurred to me before to consolidate all my cords in a smaller bag, but this has proved very convenient.

A Backpack? Aren't you worried about looking unprofessional?

Now that my practice focuses primarily on mediation and less on litigation, I worry less about appearances and more about practicality and efficiency.  Clients who come to my office want solutions not a hired gun, and they respect efficiency more than flashiness.  I have used messenger bags and briefcases and my biggest complaint about both is that they are not comfortable over a lengthy period of time.  Even if you have a light laptop, when you start adding cords, and tablets and other accessories, your bag will have considerable weight.  Just adding a water bottle makes a huge difference in how long I can put up with a messenger bag over one shoulder.

While still a backpack, the Synapse straddles the line of professional and practical.  Without getting into a full feature review, there are two features I think highlight this thoughtful design:

First, the Synapse is designed around a central water-bottle sized pocket, which makes it more comfortable to carry for a distance with a heavy bottle.  This is an ingenious backpack improvement if you've ever hiked with a backpack that holds the water bottle hanging off to the side. Despite having this amazing hiking feature, it still has a very simple straightforward design that doesn't have to look like you're hiking.  The other simple design element that adds to the professional look of the Synapse is the inclusion of removable chest and waist straps.

Ultimately, I decided that the comfort of a backpack far outweighed any concerns that it might not be as stylish with a suit.  The Synapse allowed me to retain as much style as possible in the backpack form, especially with the significant array of color combinations (my color choice was gray with purple lining - matching one of my favorite suit & tie combinations).

P.S. Working with nice people is nice! The final point I want to make is one that wasn't even on my radar when I started looking for a new work bag.  I am admittedly lazy at times regarding the quality of the company that I am buying from.  As the owner of a small business, I make so many purchasing decisions that sometimes I don't take the time to get to know who I'm doing business with.  But once in a while a company reminds you why that matters.  Tom Bihn, as a company, impressed me in two immediate ways that make me want to see them succeed:  great customer service and local manufacturing pride.

Hollie, their Bag Guru, e-mailed back and forth with me for three days (replying almost immediately every time) to answer every question I had about the Synapse and how it might fit my needs.  This attention to detail seems to be present in their attitude about how they manufacture their products as well. Manufacturers have a lot of cheap options for materials and labor outside the United States, but Tom Bihn tells you on their website about the importance they place on making their product in America.  Even more impressive than the sentiment is the fact that their whole operation is visible on their website: including a web-bio for each of their seamsters and seamstresses.  How unusual and cool is that!

Customer service is something you just can't fake, and while it doesn't drive my initial buying choice as often as it should, it will bring me back to a company again and again.  Tom Bihn was kind enough to provide me with this Synapse 25 to review, but I am so impressed by it and them that they have been bookmarked as my first site to visit the next time I need any type of travel, fun or work bag.

Friday, January 30, 2015

Can I Modify my Alimony? Updated Flowchart.

The SJC reached a decision on 1/30/2015 on three cases that interpreted the modification provisions of the Alimony Reform Act.  The SJC disagreed with our prior interpretation and decided that the provisions on retirement age and cohabitation can not be read retroactively.  To read more on these decisions check out our post here: Lifetime Alimony is Back (for some)! - Chin v. Merriot.

If your case is a post March 1, 2012 case then all of the Act's provisions apply to you and your case would be modifiable pursuant to the terms of your Judgment read in conjunction with all provisions of the Act.  The following flow-chart depicts the decision tree for determining whether you qualify for a modification of a Massachusetts alimony order under The Alimony Reform Act of 2011 if your original divorce was completed prior to March 1, 2012:

You may reprint or distribute this Infographic on your website so long as the copyright and contact information for Kelsey & Trask, P.C. remains attached to the bottom of the image.

Click here for more information about Modifications in Massachusetts.

Lifetime Alimony is Back (for some)! - Chin v. Merriot

Three months ago we told you about three very important pending cases that were argued before the Massachusetts Supreme Judicial Court, all three having to do with the issue of alimony modification. Today, the SJC released their decision on these three cases (Chin v. Merriot, Rodman v. Rodman, and Doktor v. Doktor) and in doing so they have created two clearly separate classes of alimony cases: those cases that were decided prior to March 1, 2012 and those that were decided after March 1, 2012.

On March 1, 2012, the Alimony Reform Act took effect, and it included limits on the amount and duration of alimony orders going forward.  It was the law before the Act, and still is, after the Act, that alimony orders which are merged into the Judgment are modifiable if there has been a material and significant change in circumstances.  The Act also provides that the duration of old orders can be modified based solely on the "durational limits" in the new Act, even if there hasn't been a change in circumstances.

The question that the SJC faced in these three cases is whether the duration of alimony could be modified on pre-Act cases for any limitation in section 49 of the statute, or only based on the specific duration limits that apply to marriages that were less than 20 years in length: section 49(b) only.  This is a significant issue because for post-Act cases alimony can be terminated upon reaching full Social Security retirement age, or if the recipient shares a common household with someone new.   If these provisions don't apply to pre-Act cases then "lifetime alimony" will continue for any pre-Act alimony payors and recipients who were married for more than 20 years.

The SJC in Chin v. Merriot determined that "both the retirement provision and the cohabitation provision apply prospectively" only.  The Court bases its decision on principles of statutory construction which require that each word be given its plain meaning unless otherwise defined.  The Act in Section 4 makes an exception for retroactive application only for "existing alimony judgments that exceed the durational limits under [G. L. c. 208, § 49,]."  But the Act fails to define "durational limits" beyond its plain meaning, which according to the SJC in both Chin and Rodman, means that the prospective exception can only be referring to section 49(b).

Prior to these decisions, the prevailing belief, which the Act was criticized for (including in this WCVB news report), was that all the duration provisions in section 49 applied retroactively, including the retirement and cohabitation provisions.  Some believed this was unfair to recipients who depended on these funds, but many believed the Act allowed for this modification because of the language in section 6 of the act which allows modification to be sought on or after March 1, 2013 by "...any payor who has reached full retirement age, as defined in [G. L. c. 208, § 48,] or who will reach full retirement age on or before March 1, 2015."  This section seems superfluous if retirement is not including as a "durational limit."

While this is not addressed in Chin, this argument was raised in the oral argument in Doktor v. Doktor and the SJC explains in Doktor that Section 6 has to be read in conjunction with Section 5 and therefore:
"Read together, uncodified §§ 5 and 6 establish that, where a payor who had been married to a recipient for fewer than twenty years seeks to modify an alimony obligation based on the durational limits of G. L. c. 208, § 49, and the payor also will "reach full retirement age on or before March 1, 2015," the payor may file a complaint for modification on or after March 1, 2013, '[n]otwithstanding clauses (1) to (4) of [§] 5'."  
Essentially the SJC has decided that Section 6 is just a very narrow exception to the filing dates in Section 5.   While I personally believe that it is very unlikely that this was the intention of the legislature or drafters, the reality remains that there was an ambiguity left in the Act which left room for this interpretation.  If  Section 4 referred directly to the portions of section 49 by letter, there would be no ambiguity.  However, it did not and unless the legislature makes a change, now that the high court has ruled there is no longer an ambiguity on how the Act will be applied.

If you settled your case or it went to Judgment prior to March 1, 2012 and your marriage was longer than 20 years, then the same standard does not apply to your case as applies to people divorcing now.  Some will think that's fair and others won't, but the bottom line is that for some "lifetime alimony" remains the law... but only for some.

Thursday, January 8, 2015

Let the Judge Decide! - The End of Conflict or Just the Beginning?

"Let the Judge Decide!"  

How often have I heard that in my career as a divorce attorney and mediator?  Too many times to count.

In many cases, when a spouse or their attorney feels that they are unable to reach an agreement with the other side, they simply decide to put the issue to the Judge.  After all, that's the Judge's job.  The whole reason we have a civil legal system is to resolve disputes in a civilized way between adults, but that system is far from perfect.

Have you really been told the truth about what it means to "let the Judge decide?"

The Probate and Family Court as a division of the trial court is an (almost) free service available to all members of the public over whom they have jurisdiction.  They will not provide you with a free attorney in most cases, but there are free law libraries throughout the state, and the court will provide you with the necessary forms and an interpreter if you have the need.  If you have a civil dispute, such as a divorce, and are unable to reach an agreement, the Probate and Family Court is a resource that can help you reach a decision.  You have every right to "let the Judge decide" for you, but:

You may not like the resolution or the process.  
In fact you probably won't.

The Probate and Family Court system is a one-size fits all system.  Treating everyone equally has both advantages and disadvantages.  Be prepared for long lines and overworked court staff.  The process of resolving your case may not seem like rocket science, but you are not the only case they have to resolve.  The Massachusetts Probate and Family Court had 156,531 total cases filed in fiscal year 2014.

Middlesex County alone had almost 5,000 divorce and related cases filed in that same year (and 26,092 total cases).  That might not seem like a lot of customers in one year, until you realize there are only eight judges in the Middlesex County Probate and Family Court and they will have to see all of those cases at least once.  In addition, the contested cases will have multiple hearings and many of the cases from previous years are still open.

In our experience, the Judges genuinely try hard to give every person in front of them a fair chance to be heard and to make a reasonable decision.  But practically speaking, they can't give that many cases close attention.  You do have a right to a trial, and a right to have a Judge decide an issue if you believe that your ex is being unreasonable, but don't be fooled into thinking the Judge will make that decision with all the relevant information.  There just isn't enough time.

In order to serve as many people as possible the court is forced to apportion rough justice and hope that it's good enough.

Rough Justice is not good enough for families.

We recently posted about a heartbreaking case in which a father, who the court admitted was an abuser, was granted custody of his children.  That may seem like a crazy result, but reading the full decision it was obvious how hard a case it was, and how difficult it was for the trial court and the Appeals Court to come to that decision.  While we agreed that the court may not have had a better choice under the law, the family certainly had better options for resolving their disputes.  Extended litigation only put the children of that family at higher risk of abuse, regardless of which household they were in.

The Judge's best option is rough justice because they are limited by the law and time.  They will not hear all the facts of your case.  Some relevant facts are excluded by the rules of evidence, and many more will be excluded because they just don't have enough time to hear it all.  You may believe the Judge would agree with you if they knew everything you knew, and you might even be right, but the Judge will never know everything you know about your case.

Even if the Judge agreed with you, the law limits what the Judge can order you to do, while your options in dispute resolution are practically endless.  For example, even if a parent coordinator might be a great option in your case, recent case law suggests that a Judge can't assign a Parent Coordinator over one party's objection.  You've not only limited the possible solutions by letting the Judge decide but you've also accepted that a stranger with imperfect information will make a decision about the future of your unique family situation.

Maybe, though, in your case rough justice is good enough.  Maybe, you're thinking that at least it's some justice and at least it will be an end to the conflict.  After all, many people just want their divorce case over, before it even starts.  Unfortunately:

It's not over when a Judge decides.

Almost every final decision from a Judge (and even some temporary orders) can be appealed.  That means multiple appellate Judges will second guess the decisions of the first Judge.  It means more time, more money, more frustration, and ultimately if they disagree with the first Judge, it means starting all over again.

One excellent example of this problem is a 2014 Rule 1:28 decision, Sibert v. Sibert, in which the Appeals Court reversed the property division, alimony and attorney's fee awards of the trial court.  Essentially the parties were being sent back to the first Judge to do almost everything over again.  The primary reason behind the Appeals Court's decision to remand these issues was the failure of the trial Judge to provide adequate findings to rationally support the decisions.  As lawyers, we're use to hearing these types of legal explanations for an appeals court handing a case back to the trial Judge, but to a client it must seem absurd.

The higher court is essentially saying the lower court didn't do their job well enough.  The decisions might even be right, but the Judge didn't write enough of their work down so they can't tell if the solution is correct.   How many people would say "let the Judge decide" if they understood what they were really saying was "let the Judge decide, and then if we don't like it we'll let some other Judges decide if this Judge needs to decide again, and so on..."

Since, many people can't afford an appeal, you may think that an appeal is a low risk and not worth worrying about in your situation.  But wait, there's more:

Even once a decision is final, it probably isn't over.
Modification and Contempt:

In your personal experience are people more likely to complete a task when they agree to do it or when they're told to do it?  It's human nature to rebel against a decision or order we believe is unfair.  Probate and Family Court orders and judgments are no exception.

Divorced spouses who reach an agreement will sometimes fail to live up to that agreement, or seek to make changes.  After all we can't predict everything.  However, the odds of returning to court are much higher if you let the Judge decide the first time and it should be obvious why.  If you needed the Judge to tell you one thing, why not everything?

In 2014, there were 18,291 Contempt cases filed and 31,788 Modification cases filed in the Massachusetts Probate and Family Court.  That's 50,000 times someone wasn't happy with their prior judgment, in 2014 alone, almost one third of all the cases filed in 2014.

Not only do those cases split the Judges attention even further, they demonstrate a failure of the system to work in the first place.  Letting the Judge decide is not just a choice about the current issue in front of you right now, but it is also a choice about how you will decide all future issues.

A Better Way to Resolve Conflict?

While many people are only aware of one way to get divorced, there are in fact many different ways to complete a divorce in Massachusetts.  Because of the legal nature of a divorce, and the media portrayal of high profile court battles, many people aren't aware that court doesn't have to be your first stop in a divorce.  In fact, your divorce might be a lot more efficient, civil and cost-effective if court is your last stop.  Collaborative Law and Mediation are just two of the processes by which you can resolve a divorce case before going to court.

Even when settlement seems impossible, dispute resolution processes offer many tools and resources to help you find long-lasting solutions.  If you are able to resolve all of the issues through a dispute resolution process and reduce them to a written agreement, then you will avoid having a Judge make important life decisions for you.  More importantly, you might just set the tone for how you and your ex-spouse resolve any future disputes.

Wednesday, January 7, 2015

Appeals Court confirms Survived Agreements are not Modifiable, even under the Alimony Reform Act: Lalchandani v. Roddy

This post written in collaboration with Jason V. Owens, Esq. of Stevenson & Lynch, P.C.

The Appeals Court recently decided another alimony modification case, Lalchandani v. Roddy (AC 13-P-1988), but don't get excited.  The case doesn't contain any revelations.  The issue presented in Lalchandani v. Roddy is whether a husband who has reached federal retirement age can seek to terminate his alimony obligation, despite a survival clause prohibiting modification in a divorce agreement, where the parties subsequently agreed to reduce the husband's alimony after the divorce.  In this case, the flaw in the husband’s argument was easy to spot: the modification agreement that the parties entered after the divorce also contained a survival clause that prohibited any further reduction in the alimony unless husband becomes “totally disabled such that he is completely prevented from working”.

Since, the Alimony Reform Act is quite clear that surviving alimony provisions cannot be modified under the Act, the only real issue in the case was whether the survival clause in the judgment was ambiguous.  Unsurprisingly, the Appeals Court found that the “total disability” clause in the modification agreement was clear and enforceable, and denied the husband’s request to terminate alimony on the sole basis of his age. (Husband did not allege that he was totally disabled.)

Frankly, it is somewhat surprising that the Appeals Court elected to publish this opinion, given the narrow scope of the decision.  Even more interesting, the Appeals Court flagged the bigger issue that the SJC is now working on: namely, whether the duration limits on alimony set forth in the 2011 alimony reform act apply to any alimony orders pre-dating the effective date of the act, March 1, 2012.  In Lalchandani v. Roddy, the Appeals Court flirts with deciding whether modification of alimony orders under the alimony act are strictly prospective, stating, “it is true, as the husband points out, that the act provides that general term alimony orders terminate upon a payor attaining full retirement age …” However, the Court pulls back at the last second in Footnote 9, explaining that the Court “need not” determine “whether the act is prospective only” as a general matter, since the Court was able to resolve the case on other grounds.

We'll have to continue waiting for a decision on the three outstanding SJC cases for guidance on whether the Act can modify alimony on pre-Act agreements and judgments.

Stay tuned!

Thursday, January 1, 2015

How does a second job affect child support or alimony?

In Massachusetts, both the child support guidelines and the alimony statute address second job income.  One key question for both child support and alimony is determining when the additional income started.

The definition of income for both child support and alimony starts the same.  M.G.L. Chapter 208 Section 53b states (with some limitation) that income for determining alimony shall be defined as set forth in the Massachusetts child support guidelines.  The child support guidelines define income as "gross income from whatever source regardless of whether that income is recognized by the Internal Revenue Code or reported to the Internal Revenue Service or state Department of Revenue or other taxing authority."  The guidelines then go on to list numerous types of income that would be included.

In the child support guidelines, second job and overtime income are addressed immediately after the definition of income and start with the presumption that the income is included.  The court can include or exclude all or some of the additional income even if it was earned prior to the initial order, but if the court excludes it they have to consider certain factors "including but not limited to the history of the income, the expectation that the income will continue to be available, the economic needs of the parties and the children, the impact of the overtime on the parenting plan, and whether the extra work is a requirement of the job."  Essentially this means the Judge has broad discretion, but starts with the presumption that the income is included unless these factors weigh against that presumption.

Second job or overtime income that starts after the initial order, however, is treated differently:
"If, after a child support order is entered, a Payor or Recipient obtains a secondary job or
begins to work overtime, neither of which was worked prior to the entry of the order, there shall be a presumption that the secondary job or overtime income should not be considered in a future support order."
This encourages people to supplement their income without being punished for it, which makes sense.  In addition, this is only a presumption which could be overcome if, for example, the payor was underemployed in the first place and this second job really just brings them up to a more appropriate base income.

Because the standards for determining an amount of alimony vary from those for determining child support, the second job income's affect on the payor's "ability to pay" could result in a different determination than the findings required for including or excluding second job income for child support calculations.  However, there is a presumption in both cases that if the income starts after the initial order, then it is not included.  This issue was specifically addressed as to an alimony modification by the Appeals Court in the recent Vedensky decision.  

Visit our main site for more information on alimony, child support or modifications.

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