Friday, December 9, 2016

Why do People go to Court to get Divorced? Because that's where the money is...

There is a story that Willie Sutton, a famous bank robber, once responded to a reporter who asked "Why do you rob banks?" with the simple answer "Because that's where the money is!"  While that story is probably made up, it reminds me of the reason that most people go to court to get divorced: because that's where the paperwork has to be filed.

Of course, if divorce was as simple as filling out the paperwork then there would be no need to write anything further.  However, the act of getting divorced involves numerous aspects of a couple's lives including finances, parenting, communication, loss of a relationship, forming of new relationship dynamic, etc.

One Court's Answer:

One court in San Francisco, California has recognized this problem by "strongly recommending" that people filing with the court in family law matters first consider out-of-court dispute resolution options:
"The San Francisco Superior Court and its Family Law Department strongly recommend the use of alternative dispute resolution methods in family law matters. This Notice is intended to inform parties and counsel about the nature and availability of such methods. All parties and all counsel in such matters must file and serve a signed copy of this Notice in the manner prescribed in Rule 11.17 of these Rules."  NOTICE OF NATURE AND AVAILABILITY OF ALTERNATIVE DISPUTE RESOLUTION METHODS IN FAMILY LAW MATTERS
The Notice explains the options of mediation and collaborative law in depth, as well as describing areas where those options might not be appropriate.  While you can't force someone to really consider all their options, this Notice at least ensures that the parties are aware they had options.

How does Massachusetts Compare?

In Massachusetts, we have a similar rule about informing parties of ADR options but the Uniform Counsel Certification Form is only signed by counsel and this is the entire text:
In accordance with Rule 5 of the Supreme Judicial Court Uniform Rules on Dispute Resolution (SJC Rule 1:18) which states in part: 
"...Attorneys shall provide their clients with this information about court-connected dispute resolution services; discuss with their clients the advantages and disadvantages of the various methods of dispute resolution; and certify their compliance with this requirement on the civil cover sheet or its equivalent." 
I hereby certify that I have complied with this requirement.
Many people don't go to court because that is their best option, it's often because they don't know that they have other options.  The Rule 5 form is an opportunity to educate, instead of just treating it like a formality.

Dealing with the Conflict of Interest:

Critics of how family court is structured in the United States often point to the conflict of interest that divorce attorneys have:  attorneys make more when there is more conflict and when cases go to court instead of settling.  In fact, there's a whole "documentary" dedicated to the subject: Divorce Corp.
This type of conflict is not unique to the legal field.  In medical ethics, for example, one answer to addressing this type of conflict has been to require "informed consent": "But signing a form alone does not necessarily prove that the patient gave informed consent. The doctor must actually discuss the procedure and risks with the patient. And the patient must understand, to the extent possible, the risks he or she faces."

If attorneys and the family court are serious about client autonomy and the right of parties to settle on an informed basis, then the parties have to know their options before proceeding in court.  Otherwise, it's a fair criticism to say that clients are often encouraged to go to court "because that's where the money is" for the lawyers.

I truly believe that the majority of divorce attorneys are not following purely financial motivation, but if I'm right then we need to support better efforts for "informed consent" by our clients.  California is clearly leading on this front, and Massachusetts courts should follow suit.

Sunday, November 27, 2016

Can Child Support be Modified Retroactively? The Appeals Court Answers in Rosen v. Rosen

The Massachusetts statute on the enforcement of child support judgments is very clear that child support judgments are not "subject to retroactive modification except with respect to any period during which there is pending a complaint for modification." M.G.L. c. 119A §13(a).  A recent Massachusetts Appeals Court decision recognized some exceptions to this rule "in certain very limited circumstances." Rosen v. Rosen (2016)

The Rosen case involved a couple who were married fourteen years and divorced by agreement in 2003.  The mother had primary physical custody of three children and the father paid monthly child support of $4,500.  Upon the oldest child moving in with the father, he unilaterally reduced his support by 1/3 without court approval.  The parties later reached an agreement (2009) memorializing a change in support to $3,400.  The agreement was filed but not approved by the court due to procedural issues.

In 2011, a second child moved in with father and he filed a Complaint for Modification seeking to reduce his support and force the mother to contribute to college education expenses.  The mother filed a Complaint for Contempt seeking retroactive repayment of the child support that was underpaid on the original separation agreement.

The trial judge acknowledged that she could not retroactively enforce the 2009 agreement, but she did give an equitable credit to the father for the fact that the older son had been living with him for a period of time.  The mother challenged the equitable credit among other decisions of the trial judge.  The Appeals Court reviewed in depth the standards used in other jurisdictions for creating exceptions to the limitation on retroactive changes, but decided to create their own very specific exception.  In order to avoid confusion or abuse of any exception created, the Appeals Court in Rosen "favor[ed] a clearly delineated standard that relies on objectively verifiable facts in order to allow an equitable credit."

The Appeals Court set out the following requirements for an equitable credit to be received against a child support arrearage:

The payor must demonstrate the following to receive an equitable credit:

  1. the support recipient agreed (a) to transfer custody of the child to the payor for an extended period of time not contemplated in the original custody order,  and (b) to accept the payor's direct support of the child as an alternative method of satisfying the payor's child support obligation; 
  2. the custody transfer was not the result of duress, coercion, or undue influence exerted by the payor against either the recipient or the child; 
  3. the payor provided the child with adequate support and maintenance while the child was principally domiciled in the payor's home; 
  4. the recipient was relieved of supporting the child during the period in question; 
  5. the alternative support arrangement was not contrary to the child's best interests; and 
  6. granting a credit to the payor for his or her direct support of the child would not result in injustice or undue hardship to the recipient. - Rosen v. Rosen (2016)
Applying these narrow principles in the Rosen case, the Appeals Court concluded that the trial judge was justified in finding that this case presented "compelling circumstances of an equitable nature" and affirmed the trial judge's award of an equitable credit to the father.  The court also dealt with the standard for a finding of Contempt, corrected calculation errors as to the arrearage amount, and affirmed a college education contribution award against the mother.  

There are two takeaways from the Rosen case on the primary discussion regarding retroactive credits:
  1. There is now a very clear test for determining whether a retroactive change in child support prior to the service of a Modification Complaint is appropriate, and it is a very narrow test.  In other words, child support is almost never retroactively modifiable prior to the date of service of the Complaint of Modification.
  2. If two parents reach an agreement for modifying support, even in writing, it has to be approved by the court or it will not be enforceable.  

Wednesday, November 23, 2016

Post-Divorce Lessons from the Massachusetts Appeals Court: Fehrm-Cappucino v. Cappucino

Even after a divorce the conflict between couples sometimes continues due to an ongoing support order or co-parenting relationship.  If spouses don't settle on an agreed upon process for addressing future changes, these disagreements can often lead to additional court cases.

In the case of Fehrm-Cappucino v. Cappucino, a 2016 Massachusetts Appeals Court case, the parties took a modification and contempt action to trial and appeal, resulting in a remand of both cases back to the trial court for new findings.  In Fehrm-Cappucino, the father sought a reduction in his child support in a modification, and the mother sought a finding of contempt against the father for non-payment of a lump sum owed under their agreement.

Here is what we can learn from the Fehrm-Cappucino decision:

1.  Rental Income Is Includible for Child Support Calculations

The trial Judge excluded rental income each parent had from properties they had an interest in.  The trial Judge excluded the father's rental income because the underlying property was divided in the divorce.  However, the Appeals Court didn't agree that the division of the asset in divorce resulted in a waiver of the income's inclusion in the child support calculation.  This is not a double-dip because income from the asset and the underlying principal value are different, and there is no exclusion in the child support income list for assets divided during the marriage (as there is in the alimony statute).  This issue was therefore remanded to the trial court.

2.  Contribution from the Mother's Boyfriend to Rent Is Not Includible for Child Support Calculations

The mother appealed the trial Judge's decision to attribute income to her based on contributions from her cohabiting boyfriend.  The appeals court indicated that the findings were insufficient because the trial judge should have made additional findings as defined in Murray v. Super, 87 Mass. App. Ct. at 155:
"[a]dditional findings that would aid our analysis, includ[ing], but . . . not limited to, . . . the lack of an obligation of the mother's [boy friend] to support the children, the manner in which the mother's and the children's lifestyles are altered by these funds, the discretion that the mother's [boy friend] maintains in payment of these funds, and the manner in which the mother would support her household absent these funds." Murray v. Super, 87 Mass. App. Ct. at 155.
This issue was therefore remanded to the trial court.

3. Attribution of Income to the Mother was Not Sufficiently Supported

The mother also appealed the trial Judge's decision to attribute income to her based on her own earning capacity.  According to the child support guidelines:
"[t]he Court shall consider all relevant factors including without limitation the education, training, health, past employment history of the party, and the availability of employment at the attributed income level. The Court shall also consider the age, number, needs and care of the children covered by this order. If the Court makes a determination that either party is earning less than he or she could through reasonable effort, the Court should consider potential earning capacity rather than actual earnings in making its order."
The trial judge found that the mother was capable of working thirty hours per week at her previous hourly rate of $25.  However, the trial Judge did not make specific findings as to the availability of employment at the attributed level and the Appeals Court therefore remanded this issue as well.

4. It's Difficult to Prove a Negative

The trial Judge also concluded that the father was not in contempt for failing to pay a $10,000 lump sum.  The Judge found there was a lack of direct evidence.  While the Appeals Court did indicate that the trial Judge is not required to accept the wife's testimony that the payment wasn't made, they noted that the trial Judge failed to list a rationale for ignoring her testimony without any opposing evidence or a finding of credibility.  Therefore the contempt adjudication was also remanded for further rationale or a different disposition.

All of these Appeals Court rulings are helpful in approaching other post-divorce matters that might arise but it is an expensive lesson for these parties.  It is noteworthy that these parties spent a considerable amount of time fighting these post-divorce cases only to be returned to trial by the Appeals Court.  This is another example of a case where early intervention dispute resolution through mediation or other forms of conflict resolution could have resulted in a faster and more efficient result.

Friday, November 18, 2016

Who Needs to Know? - 5 Best Practices to Protect Privacy in Divorce

Divorcing spouses that choose outside-of-court dispute resolution, like mediation or collaborative law, often list privacy as one of their primary reasons for choosing to avoid court.  This may seem obvious when thinking about the publicity around celebrity divorces but anyone having their dirty laundry aired publicly can be damaged both emotionally and financially.  Below are some precautions that practitioners and clients can take to protect private information in divorces, even if they're not a celebrity.

1.  Protect Personal Identifying Data: 

The court process in many states is public (in Massachusetts this includes hearings, most court documents, and trials), however there are some limitations on what information is public.  Certain documents, such as the Financial Statements, are typically impounded, meaning the public does not have access to those documents and they are only available to court personnel, parties and their counsel.  In addition, most courts encourage parties to limit what information they share.  

In Massachusetts, the SJC has provided "Interim Guidelines designed to protect against identity theft by having court filers omit or delete certain personal identifying information, such as social security numbers. These Guidelines for the Protection of Personal Identifying Data (PID) in Publicly Accessible Court Documents are non-binding and took effect on September 1, 2009."

These Interim Guidelines encourage the redaction or omission of the parties' social security numbers, driver's license numbers, tax id numbers, passport numbers, and mother's maiden names.  There are exceptions listed, but clearly the best practice is to err on the side of not including this information, even on impounded documents, unless required.

In a Massachusetts practice, this means that we strongly advise clients to only use last four digits of their social security and account numbers where that information is required (such as on financial statements), and not to use their full information.  For professionals any such disclosure of client's information that isn't required could be considered a violation of M.G.L. 93H.  This includes redacting that information from any document that might be included as an exhibit (such as a tax return or account statement).

2. Don't Air the Dirty Laundry:

One of the problems with trying to settle a divorce case through the court process is that an adversarial process encourages people to take extreme positions.  When presenting to a court this is usually a client's last chance to get their best possible result, which requires that they make their "best case" and the other side's "worst case."  In divorce, this best case/worst case information can be very personal.  

While presenting to a court is sometimes necessary that doesn't mean that all the dirty laundry needs to be put into public documents.  Parties and counsel should be thoughtful about what they put in writing and how they write it.  This is primarily an exercise in common sense, which unfortunately may be a difficult request when client's are emotional and scared.  One question that can be used to help client's draw that line appropriately is to ask "Would you be comfortable with your child reading this statement?"

Would you be comfortable with your child reading this statement?

If your answer to that question is no, but a truly damaging piece of information is necessary for an argument in court, there is a process for requesting impoundment of sensitive information:

3. Ask for Particularly Private Information to be Impounded:

While some documents are impounded, most court documents are not:  
“[I]mpoundment is always the exception to the rule, and the power to deny public access to judicial records is to be 'strictly construed in favor of the general principle of publicity.'” Republican Co. v. Appeals Court, 442 Mass. 218, 223 (2004), quoting Commonwealth v. Blondin, 324 Mass. 564, 571 (1949)." - Handbook on Trial Court Rule VIII, The Uniform Rules on Impoundment Procedure
Protecting public individuals from private or hidden government action is an important principle of a democratic republic.  So in states like Massachusetts, impoundment is the exception, not the rule, and is only available in limited circumstances. It is therefore difficult to impound certain information.  However, there are many circumstances where courts in Massachusetts will agree it is appropriate.  There are very careful precautions that one should take when requesting impoundment.  For example:  
  • when filing a Motion to Impound you should probably also ask that the Motion to Impound be impounded as it may also include sensitive information; 
  • always file the Motion to Impound before filing the sensitive information; and 
  • make sure to include only the necessary information to argue impoundment in the Motion to Impound. 
In Massachusetts the court has specific rules and procedures for this type of request contained in the Handbook on Trial Court Rule VIII, The Uniform Rules on Impoundment Procedure.  This is a complicated process and we recommend consulting with counsel when making this type of request.

4.  Protect Sensitive Financial Agreements by Including in Impounded Documents:

In Massachusetts, the Financial Statements in a divorce are impounded automatically (without having to present a Motion to Impound as described above), but the Divorce Agreement is public.  It is typical, therefore, to reference accounts as listed in the Financial Statement and not disclose unnecessary information about accounts in the Divorce Agreement.  Incorporating the information via reference to the Financial Statement makes that document part of the settlement so it is very important that both parties carefully prepare their Financial Statements to be true, accurate and complete.

In addition, it is possible to use this technique more creatively to protect certain information.  For example, if the parties are agreeing pursuant to their Divorce Agreement to sell their house, they likely want to include some parameters around that sale in the Agreement.  They may want to list details about the agreed upon sale price and a mechanism for reaching agreements to evaluate a lower offer.  Putting that information in the public document, however, could be to their detriment.  If a potential buyer reviewed that public Agreement they might use that information to their advantage in negotiating a sale price for the house.  That risk can be avoided by including that same information as an addendum to both parties' Financial Statements and only referencing that addendum in the public document.

5.  Choose a Private Process from the Beginning:

As we indicated at the beginning of this article, privacy is a major concern for many families and one of the primary reasons that a family may choose to avoid court.  There are options for resolving conflict which do not require airing the dirty laundry in court, and which allow for thoughtful planning about what information should be kept private.  Mediation and Collaborative Law are both out-of-court resolution options which assist parties in reaching agreements in an office setting instead of a public courthouse.

Mediation and Collaborative Law have many other advantages as well which we encourage you to read more about on our website.  For the purposes of this article and focusing on privacy there are two ways that mediation and collaborative law protect a client's privacy:

First, mediation and collaborative law are both confidential processes in which the parties typically sign a written agreement that protects the discussions and proposals that occur within the process.  A recent Massachusetts case upheld the confidentiality of the mediation process even in some extreme circumstances, so long as the requirements of the privilege statute were met.

Second, mediation and collaborative law allow parties to draft agreements and court documents in a thoughtful way, so that even a public Divorce Agreement filed at the end of a case can be crafted in a way that limits public exposure.  The example given in section 4, above, of including asset division information in the impounded financial statement instead of the Agreement, is the type of solution that is encouraged by the joint problem solving in mediation and collaborative law.

Empowerment through Privacy

Divorce, for many, can be very difficult, but considering all of the options can reduce the amount of stress, embarrassment, tension, and financial impact that people experience from divorce.  The control of information is often the difference between feeling empowered and feeling powerless.  Following these tips should help clients and professionals control how much information is kept private, thereby empowering spouses to experience a less traumatic divorce.

Thursday, November 17, 2016

How Private is a Meeting with an Attorney or Mediator?

There are two different levels of protection you might have when meeting with a professional and they are both important: Confidentiality and Privilege.

Confidentiality is a duty for the professional to keep information you share with them private, and different professions have different sources of authority for such a requirement.  In other words, confidentiality is rooted in the obligations of the professional, not necessarily in a right of the client.

Privilege, however, is a right that is granted only in particular situations.  In this context when we are discussing privilege we are referring to a right, conferred by the government, to exclude certain information from being admitted in a court proceeding.  This could mean, for example, that if a privilege applied you could prevent the professional from testifying in court.  Privilege is a right rooted in the relationship between the professional and the client, and is typically owned by the client.

Is the information you share with an Attorney or Mediator confidential?

Any information you share with a mediator or attorney should be kept confidential by that professional, but a mediator may not have the same ethical requirements depending on their profession.  A mediator who holds a license in a field other than law (such as a social work license) will likely have similar ethical requirements as a lawyer for keeping information you provide to them private.  An attorney, when acting as a mediator or in an advocate role, has ethical requirements outlined by their licensing authority.

Either way a mediator or attorney should not be sharing your confidential information, but if you have questions about how they view that duty you should ask in the initial consultation before you hire them.

Is your information protected by a privilege when meeting with an Attorney?

The private communications that you have with an attorney are protected by the attorney-client privilege, unless another person is present (or you are planning a crime together):
What is the attorney-client privilege?Attorney-client privilege is the right of clients to refuse to disclose confidential communications with their lawyers, or to allow their lawyers to disclose them.  The attorney-client privilege is viewed as fundamental to preserve the constitutionally based right to effective assistance of legal counsel, in that lawyers cannot function effectively on behalf of their clients without the ability to communicate with them in confidence.
Why is the attorney-client privilege important?The attorney-client privilege is the bedrock of the client’s constitutionally based right to effective assistance of counsel. From a practical standpoint, it plays a key role in helping clients, including companies, to act legally by permitting them to seek guidance on what the law allows and requires and how to conform their conduct to the law. In addition, the privilege allows organizations such as corporations to investigate past conduct by corporate officers and employees, to identify shortcomings and remedy problems as soon as possible, by ensuring that the client can communicate fully with the investigating lawyer without risk of public exposure. That benefits the corporations, the investing community and society-at-large.
Source: http://www.abanet.org/media/issues/acprivilegeqa.html

Is your information protected by a privilege when meeting with a Mediator?

The attorney-client privilege does not apply to mediator meetings, even if the mediator is an attorney as well.  There are, however, separate privilege protections offered in mediation in some states.  For instance, in Massachusetts there is a statute that provides for a mediator privilege so long as certain requirements are met:
All memoranda, and other work product prepared by a mediator and a mediator’s case files shall be confidential and not subject to disclosure in any judicial or administrative proceeding involving any of the parties to any mediation to which such materials apply. Any communication made in the course of and relating to the subject matter of any mediation and which is made in the presence of such mediator by any participant, mediator or other person shall be a confidential communication and not subject to disclosure in any judicial or administrative proceeding; provided, however, that the provisions of this section shall not apply to the mediation of labor disputes.
For the purposes of this section a “mediator” shall mean a person not a party to a dispute who enters into a written agreement with the parties to assist them in resolving their disputes and has completed at least thirty hours of training in mediation and who either has four years of professional experience as a mediator or is accountable to a dispute resolution organization which has been in existence for at least three years or one who has been appointed to mediate by a judicial or governmental body.
Source: Mass Gen. Laws Chapter 233 Section 23C
This privilege is very powerful and was recently reviewed and upheld in a case where one party tried to challenge confidentiality and bring certain information from the mediation into court after a settlement went bad.  

The second paragraph of the statute outlines the requirements for the mediator privilege to apply in Massachusetts and if you are considering hiring a mediator you should ask them about these requirements, and whether they have any language about confidentiality in their mediation agreement.

Monday, November 14, 2016

New Massachusetts Probate & Family Court Forms - Answers & Counterclaims

Post by Valerie Qian.

We’ve all been feeling a lot of anxiety and uncertainty during this election season. Amidst this uncertainty, the Probate and Family Court has issued two new forms to make the beginning of a Massachusetts divorce case, at least, a little bit less uncertain. Effective immediately, parties who are served with or accept summons on a Complaint for Divorce can respond on the court’s new Answer and Counterclaim forms.

The Divorce Process Options in Massachusetts:

In Massachusetts parties can file a Joint Petition for Divorce or a Complaint for Divorce.  We encourage couples to first consider Mediation and Collaborative options, which typically lead to a Joint Petition filing.  However, sometimes there are emergency issues or protective issues that require the filing of a Complaint for Divorce to get a court process started.  Or, as we see too often, someone who wasn't informed about their other options files a Complaint because they believe that is the only option, and now their spouse is faced with the question of how to respond.

The Complaint for Divorce and Joint Petition forms are available on the court's website. Under the court rules, after someone files a complaint (the "Plaintiff"), they receive a document called a summons.  The Plaintiff is then required to serve the summons on the other party (service can be by constable or accepted by signing in front of a notary). The summons indicates the name and address that the "Defendant" needs to send their Answer and/or Counterclaim to.

After the Defendant is served with (or accepts service of) the complaint and summons, they are required to file a document called an Answer with the court within 20 days. The Answer responds to each of the numbered paragraphs in the original Complaint for Divorce. It is basically a place where they can confirm for the court basic facts of the case like a) their name and address, b) where they were married, c) when they were married, d) their children’s names and ages, and e) the kinds of relief they're asking the court for in their final divorce (which are generally the same in almost every case – a division of property, a judgment of divorce, a parenting schedule, child support, health insurance, etc.).

It is unlikely that a Defendant would be penalized if they forget to send an Answer, but it is good form to always submit an Answer. It tells the court that they intend to participate in the divorce proceedings and will protect against their spouse trying to seek relief from the court without their knowledge.

After someone is served with (or accepts service of) the complaint and summons, the Defendant also has the option to file a document called a Counterclaim for Divorce with the court. The Counterclaim is basically another form of a Complaint for Divorce. When the Defendant files a Counterclaim, they are telling the court and their spouse that they are also seeking this divorce, and they also believe the marriage is over. This is not a required document either, but can be helpful in notifying the court of the Defendant's intentions.

The New Court Forms:

Until recently, both the Answer and the Counterclaim were documents that a party or attorney had to prepare on their own. The court has now simplified matters by creating standardized versions of both these documents. If attorneys still want to prepare their own Answer and Counterclaim documents, they are still free to do so. In terms of format, the Counterclaim closely mirrors the Complaint form, and the Answer for, clearly sets out in numbered paragraphs each section of the Complaint that the Answer is intended to respond to.  If the Plaintiff receives a Counterclaim they should also file an Answer to the Counterclaim.

Most attorneys will advise that the Answer and a Counterclaim in a Massachusetts Divorce are really procedural documents that don’t in most cases make a substantive difference to your case. They are just a place for the Defendant to acknowledge dates and addresses (or correct them), to make sure that they get entered into the system correctly.

The benefit of having a standard form Answer and Counterclaim is that this puts the acknowledgment of these dates and addresses in a clear, neutral and less “loaded” format. We have had clients who have unnecessarily felt stress or concern when receiving their spouse’s Answer or Counterclaim, because they didn’t understand that this was just a standard form response. The neutral format makes the Answer and Counterclaim look like what it is – just a form with factual allegations, rather than a finely-crafted document full of legal arguments. In addition, it’s a format that is easier for pro-se litigants, without attorneys, to understand.  We applaud the efforts of the Massachusetts Probate and Family Court to simplify the procedure of divorce, so that families can concentrate on the more important issues in the their case.

For more information, you can read the court’s Q&A about the Answer form here.

Wednesday, November 9, 2016

A Country Divided but with Hope - A Collaborative Professional's Perspective

Donald Trump and I have something in common.  We both currently hold the title President-Elect.  Last night, Donald Trump was elected as the next President of the United States and will take office in January, 2017.  I am the president-elect of the Massachusetts Collaborative Law Council (and will take office in March, 2017).  Admittedly his election is a bigger deal, and also much more contentious than mine.  That tension needs to be discussed, and I believe Collaborative Law can be instructive in how we make that conversation constructive instead of destructive.

While all the votes are not counted yet (as of the time I am writing this - 9:10 AM EST on November 9, 2016), Donald Trump has won enough electoral votes to win the Presidential election.  He will likely lose the popular vote, though practically speaking the difference is nominal (0.1286%).  That means that our country is divided almost exactly in half when it comes to electing our President.

Source: Politico.com
That division creates strong feelings.  There are many significant differences between Donald Trump and Hillary Clinton and between their political parties.  They differ on domestic policy, foreign policy, economic policy, law enforcement policy... the list goes on.  They also differ in personality, and speaking style, and personal history.  You might wonder, how they can even be from the same country, nevermind the same state (currently).

A House Divided is Familiar to a Divorce Mediator, and Not at all Hopeless

While this division in our country may feel shocking or heartbreaking to you, this actually sounds really familiar to me because I am a divorce attorney and mediator.  Everyday I help couples transition their relationships to separate households and lives.  Many of those couples walk in wondering how they ever married the person sitting next to them.  They couldn't feel more different than they do right now.

And yet, there is a history between them that is different than what sits in front of me on that day.  Many couples choose to be in my office instead of going to court because there is some part of them that recognizes that a thread of connection remains.  Often that connection is their children, but even couples without children may choose a collaborative or mediated divorce because they respect the relationship they once had, even if they have difficulty respecting each other currently.

When divorcing couples have children together they will have an ongoing relationship, and that relationship, while different than a marriage, is an important one.  The quality of that relationship will determine what kind of households their children live in, whether their children live in fear or hope, whether their children feel like they have a place or places they can call home, and whether their children feel like they have the support and confidence necessary to succeed in their own relationships.  But that doesn't mean it's easy to define that relationship.

Many divorcing couples with children face a very hard task, because in that moment of divorcing they feel farther away from their spouse than they ever have before.  They feel divided and that feeling is not just understandable, it's expected.  Collaboration and Mediation techniques help divorcing couples build a new relationship from the loss of their old one by focusing on the interests and goals that each of the people have, many of which will overlap.  The reason this process works better than the adversarial court model at building strong co-parenting relationships between divorced spouses is specifically because of this focus on interests and goals.

Interests and goals connect people, while adversarial positions divide them.  Knowing that you want a safe and affordable place to live is not something I can argue with, even if I disagree on whether you should get to keep the house we own together.  The hard work is in helping scared, and sometimes angry, people express their goals and interests before taking positions, in finding understanding before evaluating options, and in encouraging open communication throughout that process.

A Collaborative Model for Healing a Divided Country

Donald Trump and his supporters may rejoice in his election and the confidence that half the country has shown in him.  At the same time, much of the country feels heartbroken because they feel that his message and his policies are an attack on and endanger their way of life.  If we simply take positions and call each other names then the fighting will continue, the governing of the country will continue to be obstructed by half of the people, and in 4 years we will have another election where half the country feels vindicated and half the country grieves.

Just like we expect divorcing spouses to experience the stages of grief as they mourn the loss of their relationship, I expect Hillary Clinton supporters to be despondent today.  They will likely feel denial, anger, bargaining, depression and acceptance, separately, overwhelmingly, and sometimes all at once.
Donald's supporters may be feeling positive today, but that feeling won't last forever either.  Winning the election is not a win if half the country fights everything you try to accomplish and spends 4 years deciding how to undo your accomplishments as soon as they get back in power.  That is not long-term change or hope, it's simply trading the baby back and forth every 4 or 8 years.  Without real change in how we problem solve, that is exactly what we are poised to do.

When the dust settles, however, it is possible that we can break the cycle of division in this country by looking below the surface and recognizing that we have shared interests, just as we do in a Collaborative Divorce case when we try to prevent people from repeating past cycles of division and tension.

Both Donald Trump and Hillary Clinton supporters want economic security, safety for their family and friends, and the opportunity to succeed.  Both sides often blame the other for  keeping them from achieving those goals.  The history of this country (and the world) has many examples where that is plainly true; groups often oppress those they see as different in the belief that by stepping on the backs of others they will rise up themselves.  But it always fails eventually.  The oppressed will never let you stand on their backs forever.  So why do we repeat that model, and why do we spend so much time trying to prove that the other side is focused only on that model?  It is not a constructive endeavor but it is a convenient shortcut to temporary power.

But there is another way.  The United States was built on ideals that constantly fight back against that basest of human tendencies.  We declared that the interests of all men are self-evident and eventually we declared the same for women.

Now we have to Live Up to that Declaration.  

We have to ask how the interests of Trump supporters and Clinton supporters can simultaneously rise up together.  How can we all prosper more, without it being at the cost of the others?

We have to stop falling into the trap of believing that there is "us" and "them".  Trump's America and Clinton's America are not two separate Americas.  Both sides have an obligation to make America greater.  In deciding how we do that together, we can think about the similarities between the role of citizen and the role of parent.  We have a relationship as fellow citizens, whether we like each other or not, and if we don't work together, our country, our children, our legacy will fail in life and falter.

Once the hangover of the election wears off, you still have a choice to make.  Each and every person in the United States of America has a choice.  You can be angry or depressed: fight and be divided, rant on facebook against "the others", expressing your fears and anxiety over the direction of the country.

OR you can DEMAND better, of your Country and Yourself.  

You can stop yourself from name-calling and you can write and call your elected representatives when you see them do it.  You can reach across the aisle to those who hold different expressed politics than you, and have lunch with them.  Don't just start a dialogue online and think that you've tried.  Real dialogue requires engagement, body language, tone of voice, and commitment to problem solving.  Online dialogue is too easy to walk away from, and it's too common to misconstrue the tone of a post.

If you want to be the change you want to see in the world, you have to live the act of peaceful problem solving daily.  Educate yourself about effective dialogue and problem solving and make a conscious effort to catch yourself when you resort to labelling (and using "you" vs. "I" statements). If you're convinced that you hold the moral high-ground, then you're focused on what's wrong with the other side rather than how you can improve the conversation.  Ultimately you control your actions and not the actions of others, but as I tell my divorcing clients constantly: if you don't take the action that is in your control, then you cannot expect better from the other side.

I am not exempt from any of these trappings either.  I spent the night and early morning depressed about the results of the election.  I am afraid of where our country may be headed, but I also believe that there is still a chance to heal and for good to come out of any situation.  I don't believe that the office of the President of the United States nor the person who currently holds that office has control over my (or your) opportunity.  If you want to have lunch with me to discuss further how Collaborative problem solving works, regardless of where you stand politically, please feel free to reach out to me at jkelsey@skylarklaw.com.

Finally, I want to leave you with some of the lyrics from a song that I have always found inspiration in.  It is a song that highlights that this is not a country made for one group or another (and no election is going to change that):

This Land (excerpt)
by Woodie Guthrie

Nobody living can ever stop me,
As I go walking that freedom highway;
Nobody living can ever make me turn back
This land was made for you and me.

This land is your land, this land is my land
From California to the New York Island
From the Redwood Forest to the Gulf Stream waters
This land was made for you and me.

Monday, November 7, 2016

Are you Forgetting an Important Benefit when Dividing Retirements in Divorce?

Retirement Benefits are often one of the largest assets in a marriage.  That makes them particularly important to consider in a divorce.

We've previously covered the 5 Things you Should Include in a Divorce Agreement when Dividing Retirement Accounts, but we barely scratched the surface when it comes to the different options you might see in more complicated retirement plans.  It is always essential to review the Summary Plan of any retirement account to ensure that you (or your attorney) understand all the benefits and limitations that surround that plan, before trying to divide it.  When the plan is a defined benefit plan, one of the most important and often misunderstood details is how to divide the survivor benefit.

A defined benefit plan, also typically referred to as a pension, is a plan that has a defined amount that will pay out (usually monthly) for the participant's lifetime (instead of a total amount that could run out, like an IRA).  This creates additional questions when dividing these types of accounts because the exact value of the eventual benefit is not an exact number.  It can be estimated based on the participant's lifetime but there is no way to know for sure how long the participant will live.  In fact, to address this possibility most plans have survivor benefits to provide an alternate benefit to a survivor who dies young.  It wouldn't be fair for someone to have built up a retirement over many years of service and then have their family receive nothing just because they died young.  Unfortunately, though, when a participant divorces that exact scenario sometimes happens because parties fail to address the survivor benefit, and more particularly some people fail to assign the "pre-retirement survivor benefit."

Two Types of Survivor Benefits:

Unlike a 401k or IRA that usually allows a participant to assign a beneficiary to receive the funds remaining in the account upon death, a pension usually has the option to assign a benefit only to a surviving spouse.  Once benefits commence for a participant who is married they may have a choice to define a post-retirement survivor annuity.  There may be multiple levels of survivor benefits and they typically reduce the lifetime benefit of the participant.  This means that if the parties in a divorce agree to a survivor benefit for an ex-spouse then the parties will receive less during the participant's lifetime.  This cost should be addressed in the divorce agreement because it can be shared or it could just reduce the portion of the lifetime benefit to the alternate payee ex-spouse.

This post-retirement survivor benefit may be a contentious discussion in a divorce because the participant may not want to receive less during their lifetime to provide for an ex-spouse after their death.  The other survivor benefit, however, does not have this cost.  The pre-retirement survivor benefit does not cost the participant anything because if it pays out it means that the participant died prior to their lifetime pension payments starting.

Even if the parties decide, due to the exchange of other benefits or assets during the divorce, that they are not dividing the lifetime benefit portion of a pension, they should still consider assigning the pre-retirement survivor benefit.  A court order (known as a QDRO or DRO) can be created to assign only this portion of the retirement benefit if that's all the parties agree to assign.  If the pre-retirement survivor benefit is not assigned in the divorce, and the participant dies before receiving any pension payments, then the pension may be entirely lost.  It wouldn't make any sense for a participant to completely lose this benefit just because they divorced, especially since it doesn't cost them anything extra.

Of course, if the participant remarries they may want their new spouse to be the survivor beneficiary and receive any pre-retirement survivor benefit.  This is something that should be discussed as part of the division of assets in a divorce, and negotiated if there is disagreement.  It is sometimes possible to create an order that assigns the pre-retirement survivor benefit to an ex-spouse only until the participant remarries.  This requires careful and thoughtful crafting of an agreement.  Being detailed about these provisions, however, should never prevent people from addressing them.  It doesn't make sense to simply ignore the pre-retirement survivor benefit.  Neither the participant nor their ex-spouse has any motivation to take the risk that the pension is lost entirely adding insult to tragedy in the event of a participant's early death.

At Skylark Law & Mediation, PC we prepare QDROs, DROs and provide consulting services for evaluating, negotiating and writing agreement provisions for retirement plans.  Click here for more information about those services.

Wednesday, October 19, 2016

Do you want an Attorney who FIGHTS for their Clients?

I am Attorney [INSERT NAME HERE] and I FIGHT for my clients!

This is a common description on an attorney's website.  They want you to know that they would be your champion!  If you hire them you won't have to worry about your problem anymore.  They'll take that monkey off your back.

But is that true?  Is it realistic?  Is it really what you want?

While the job of an attorney is often described as zealous advocacy, to equate that with fighting is to misunderstand the work of an effective attorney.  Zealous advocacy means that your attorney is working hard to accomplish your goals.  Unless your goal is to create conflict and start an expensive legal battle, then "fighting" is probably the last thing you want your attorney to start with.

Consider these two examples:

Example 1 - The Stolen Website Copy: You find out that one of your competitors has stolen copyrighted material from your website and reprinted it on their website.  You call your attorney.  Do you want an attorney whose first reaction is to:

A. File a lawsuit;

B. Write an angry cease and desist letter; or

C. Call the competitor and ask them to take down the content?

If your goal is to pay your attorney a lot of money for a fight then option A is probably your best bet.  If your goal is to look tough and make sure the other side starts on the defensive then option B is probably your best bet.  However, if your goal is to have the material taken down, then option C is the best way to start.  Just because you start with a phone call doesn't mean that you can't move to option B or A if necessary, but Hanlon's Razor suggests that you usually benefit by assuming incompetence before malice, and acting accordingly.

Often a phone call is enough, especially if they were unaware that their web designer has been lazy and bad at their job and just copied content from another site.  In many cases a phone call is enough for the competitor to take down the material (and hopefully hire a new web designer).

Example 2 - The Custody "Fight": You just found out your spouse wants a divorce and they want you to move out!  You don't really want to see them right now, but you are not going to give up time with your kids just because they want to get divorced.  You call your attorney.  Do you want an attorney whose first reaction is to:

A.  File a Complaint for Divorce and schedule a hearing date requesting that the Court give you Custody;

B.  Write a Letter telling your spouse that they've been hired and invite them to respond by a certain date or they will be served with a Complaint for Divorce; or

C.  Discuss all your options, which includes helping you decide if there is any opportunity for reconciliation, whether mediation or a collaborative setting could result in a better co-parenting relationship, or whether court is necessary for protection due to an issue that truly threatens the safety of you or the children.
Again, if your goal is to pay your attorney a lot of money for a fight then option A is probably your best bet.  If your goal is to have attorneys involved every time you and your spouse have a parenting disagreement in the future then option B is probably your best bet.  However, if your goal is to make sure that your children are okay and not hurt by your divorce, that both parents stay involved in their life, or that your voice is respected and heard throughout, then option C is the clear preference.  Court is the best process for some, but it should be a last resort for most, and the choice of process should be one that you make after being informed of all options.

In both examples, Option A and B are much more lucrative for the attorney so you should ask yourself why an attorney whose preference is "to fight first" has that preference?  Is it because it's best for you or because it's best for them?

You should also ask why an attorney would draft their advertising in a way that promotes their ability to "FIGHT"?  Is it because they approach every problem in that way?  Is that how you approach every problem, or do you try to resolve conflict before it turns into a fight?  Do you want to pay for a "fighter" or a "problem solver?"  Think about that when you read an attorney's website and choose wisely!

Tuesday, October 4, 2016

Who is a Legal Parent? Redux Edition - Partanen v. Gallagher

About a year ago we posted a series entitled Who is a Legal Parent? and addressed the many ways in which a parent (someone who takes care of a child) can also be considered a legal parent (someone who the court recognizes has rights and obligations relating to the care of a child).   In the Venn Diagram to the left you can see that these two categories overlap but not everyone who is a legal parent acts like a parent, and not everyone who acts like a parent is recognized as a legal parent.

Today, the Massachusetts SJC expanded the purple section of this diagram, recognizing that a non-biological parent who "jointly with the mother, received the child into their home and openly held out the child as their child" is a legal parent.  In Partanen v Gallagher the SJC read the statutory definition of paternity to include a non-biological same-sex parent.
"In addressing Partanen's claims on direct appellate review, we consider the question whether a person may establish herself as a child's presumptive parent under G. L. c. 209C, § 6 (a) (4), in the absence of a biological relationship with the child. We conclude that she may."
We review this decision below:

The court first reviewed the timeline of the relationship between Partanen and Gallagher, the two mothers in this case:

2001 - Partanen and Gallagher entered into a committed relationship.
2002 - They moved to Florida and purchased a house.
2005 - They decided to start a family; Partanen unsuccessfully underwent fertility treatment.
2007 - Gallagher underwent similar treatment and was successful and gave birth to a daughter.
2011 - Gallagher again underwent a fertility treatment and gave birth to a son.
2012 - They returned to Massachusetts together.
2013 - They separated and Partanen moved out of the family home.

From 2007 to 2013, Partanen participated in raising the children from birth, but did not formally adopt the children.  In February, 2014, Partanen filed an action seeking shared legal custody and parenting time with the children under the "de facto" parenting standard.  In October 2014 she also filed a Petition to establish legal parentage under G. L. c. 209C, § 6 (a) (4) among other laws.  The SJC did not reach her other assertions (under the reproductive technologies statute and under constitutional claims) because they found in her favor under G. L. c. 209C, § 6 (a) (4).

The trial judge dismissed the second complaint but did provide custody and parenting time to Partanen under the "de facto" parent standard, expanding the traditional "de facto" parentage case law to include legal custody and child support.  That issue is under appeal as well, but the issue of legal parentage under 209C reached the SJC first resulting in this decision.

G. L. c. 209C, § 6 (a) (4) states that "a man is presumed to be the father of a child" born out of wedlock if "he, jointly with the mother, received the child into their home and openly held out the child as their child."

Under Hunter v. Rose, the court reads all statutes as if "words of one gender may be construed to include the other gender and the neuter."  Read in gender-neutral terms G. L. c. 209C, § 6 (a) (4) includes all children who were "born to [two people] who are not married to each other" instead of its original language "born to a man and woman who are not married to each other."

Gallagher argued that, regardless of a gender-neutral reading, the provisions of G. L. c. 209C, § 6 (a) were intended only for the purpose of establishing biological parentage and are thus inapplicable to this case where this is no doubt that Partanen is not a biological parent of the children.  However, the court points out that nothing in the statute expressly requires a biological tie.

Further, the court points out that the statute's purpose is described in § 1 as providing "all '[c]hildren born to parents who are not married to each other . . . the same rights and protections of the law as all other children.' G. L. c. 209C, § 1."  Under Hunter v. Rose, if Gallagher and Partanen had been married, the children would have been presumed to have two legal parents.

The court also points out that another portion of G. L. c. 209C has already been extended beyond biological parentage, specifically under § 11 (a) if parentage is established through a written voluntary acknowledgement of parentage then even a non-biological signatory parent would be considered a legal parent with all the attendant rights and obligations.

Ultimately, the court's reading of this case (and the trial court's requirements on remand) are highly dependent on the facts of the case, and more specifically the exact nature of the relationship and decision to have children together:
"Gallagher contends also that allowing Partanen's claim to proceed intrudes on Gallagher's 'right [as] a single woman to give birth to a child into a family framework of her own choosing.' The question in this case, however, is not whether courts may impose a second parent onto a single-parent family, but whether this was, in fact, a single-parent family in the first place.  Partanen's allegation is that, from the beginning, the children had two parents, both of whom were jointly involved in the children's lives.... and  the statute at issue was enacted for the benefit of children born outside the context of marriage..."
The claims that Partanen made in her complaint regarding her involvement with the children were sufficient for the SJC to establish a claim under the "paternity" statute.  Now the decision returns to the trial court where Partanen must prove those claims.  Given her previous establishment of parenting rights under the "de facto" parenting standard it seems likely that she will be able to meet this burden of proof.

Given that this case expands the reading of the "paternity" statute beyond the traditional reading, this case may have far reaching impact on the rights and obligations of non-biological parents who formally may have had very limited rights under the "de facto" standard.  This will create some confusion as different fact patterns are presented to the court, but in the long run should mean the recognition of more parents as "legal parents", something which the SJC clearly believes is in the best interest of children born to unmarried parents.

Friday, September 30, 2016

3 Tips for a Peaceful Divorce

I was recently invited to collaborate on an expert panel and share some insights on how to prepare for divorce and keep it peaceful. Here is what I added:

The experience of a peaceful divorce does not happen by chance or by accident. It is a choice that you make and the good news, even in divorce, is that you have a choice.

Here are a few tips to help you choose peace over war when getting divorced:

1. Choose a process, don't let the process choose you.

While many people think litigation is the only option in divorce, there are many process options that can be tailored to your family's needs. Mediation, collaborative law, and outside-of-court attorney negotiation are all more flexible options than court.

Learn about all the options before you choose one.

2. Preferences before positions.

It is a common mistake to jump to conclusions about what you want before you have all the information. Instead of saying "I want the house" or "I think this much support is the right amount," consider all the options before you make a decision.

Many times your favorite option on day 1 is not the best option when all the information is gathered.

3. Use a "timeout."

Language can be hurtful, demeaning, and misunderstood or it can be uplifting, freeing and create peace. It's very easy to react when faced with the fears that are natural when splitting time with children or dividing finances.

Don't be afraid to pause, call a "timeout" and gather your thoughts before responding.

You can read the full article and the tips from other experts here: How to Prepare for Divorce

Thursday, September 29, 2016

Trusting the Trust: the Pfannenstiehl Redux

Guest Post from Beth Aarons*

Massachusetts estate planners enjoyed a collective sigh of relief as the Supreme Judicial Court (SJC) agreed to further appellate review of the Pfannenstiehl’s plight to determine whether the husband’s interest in his family’s trust should be divisible as a marital asset during divorce.  The SJC issued an opinion that such a trust should not be divided as part of the marital property.  [SJC-12031]

When the Pfannenstiehls appeared in case law three years ago, the MA Appeals Court had upheld the Probate and Family Court’s determination that the husband’s one-eleventh fractional beneficial interest in his family’s trust balance (there were 11 living beneficiaries at the time) was a marital asset, with 60% of his one-eleventh share to be paid to the wife as part of the property division in their divorce.  The class of trust beneficiaries was open to include any future descendants of the donor, but the lower court used the existing number of beneficiaries to calculate the value as the husband’s present interest.

The estate planning community was roiling in confusion, since the Pfannenstiehl family trust had elements that estate planners regularly rely upon for the protection of their clients’ assets: completely discretionary distributions, a spendthrift clause, and co-trustees, including one disinterested trustee.  Estate planners were scratching their heads and regrouping at the drawing board.  Wasn’t the point of establishing this type of trust to prevent exactly the scenario that occurred?  Shouldn’t the trust protect the family’s assets from creditors and transfers outside of the family blood line during a beneficiary’s divorce?  If not, what’s the point of creating a trust at all?  The bullet-proof language had suddenly been pierced and in that moment all similar trusts were potentially at risk.

So imagine the relief brought by the SJC’s opinion, restoring established expectations to the world of trust provisions.  It should be noted that the specific facts in Pfannenstiehl relating to the trust distributions and the particular terms of the trust factored into the SJC’s decision.  The conclusion is not that trusts are globally excluded from consideration as marital property during a divorce, but that with the right facts and circumstances, they still can be.

*Beth Aarons is a Mediator and Collaborative Law attorney who runs her own practice in Newton and is of counsel to Skylark Law & Mediation, P.C. Beth's practice includes family law mediation, collaborative divorce representation, and estate planning, trusts and probate practice. Click here to learn more about Beth or here to schedule an appointment with Beth.

Thursday, September 1, 2016

Does Settlement Counsel Help or Hurt Clients?

Guest post from Rackham Karlsson.*

A man goes to the doctor with chest pain. The doctor finds a small growth next to his heart. The growth can be removed, but it’s a very delicate operation due to the location. The doctor offers the man the choice of two surgeons:

  • Surgeon A is highly specialized. She has extensive experience with this type of surgery and has a tremendous success rate. “However,” the surgeon says, “Because I’ve chosen to focus my work on this type of surgery, there is a chance that we would want to bring in another surgeon if something goes wrong during the procedure. I don’t expect it, but it could happen.”
  • Surgeon B is a generalist, a Swiss Army knife of surgeons. He has some experience with this type of surgery, but it’s not the focus of his practice. “I can handle any situation that comes up during the surgery,” he boasts. “I wouldn’t want you to limit your options and have to change surgeons in the middle of the procedure.”

Which surgeon would you choose?

Surgeon A, right? It’s a no-brainer.

If that's true, then why do so many family lawyers dislike the concept of settlement counsel — an attorney who focuses exclusively on negotiations and bows out of the case if litigation is necessary? Doesn't the same logic apply?

Let’s give surgeon B the benefit of a doubt. He cares about his patients. He wants them to be healthy, and he truly believes that by personally offering the full range of surgical procedures, he is fulfilling his Hippocratic oath. The equivalent in law is the duty of zealous advocacy. Lawyers often believe that they can’t advocate zealously for their clients if they restrict the scope of their representation to settlement counsel and exclude themselves from litigating.

There are two problems with this view of “zealous advocacy:"

First, a lawyer who anticipates litigation is necessarily compelled to view the case in adversarial terms, always thinking about gathering facts and building a theory of the case that paints one party as the inevitable ‘winner’ and the other as the inevitable ‘loser.’

The theory of the case is a powerful, but extremely blunt, tool in the litigator’s arsenal: “Settle on my terms or I’ll have a judge do it.” This approach is simply incompatible with what it takes to reach meaningful settlement: building bridges, finding shared interests, and forming consensus. Do we really expect a lawyer to probe a party’s most private thoughts in a deposition one day, and then engage in principled negotiations with that same party the next day? Never mind whether the attorney thinks it can be done — how can we expect the party to ever trust that attorney in negotiations?

It’s no wonder that so many cases settle on the eve of trial: settlement becomes a last resort, rather than a mutual accomplishment.

Second, viewing a case through the lens of litigation encourages lawyers and their clients to focus on measurable outcomes — asset division, support amounts, hours spent with their children, etc. — because those are the outcomes a judge can determine.

But in many cases, particularly family law cases, there are complex interests involved that really aren’t measurable in that sense. Honoring what remains of a deep friendship. Forming a healthy co-parenting relationship. Being able to tell their children that it was a dignified process. Avoiding the embarrassment of an adversarial hearing. These are almost always shared goals of divorcing spouses, and yet those shared goals are consistently undermined by a litigation mindset. We all know what happens to parents who spend months (or years) working with their lawyers to paint each other in the worst possible light…

What does Settlement Counsel do?

Now, let’s consider what settlement counsel can accomplish, by explicitly and transparently announcing that he or she won’t litigate the case:

  • Settlement counsel can focus on principled negotiations without being pulled in the opposite direction of building an adversarial case against the other party.
  • Settlement counsel can get to know the other party in a setting that’s non-threatening and fosters trust, allowing both parties to explore their respective interests and work toward shared understandings — opening up options for creative, mutually agreeable solutions.
  • Settlement counsel can explore the clients’ intangible interests, being a “zealous advocate” for those interests and not just the ones that are within a judge’s limited authority.
  • Settlement counsel can assure the client that disagreements will be negotiated by the most respectful means possible, and the case will be transferred to a litigator only if absolutely necessary. (There could even be an understanding that a particular litigator has been identified if the need arises.)  
Can adding Settlement Counsel actually subtract cost?

Finally, let’s consider the financial benefits to the client of using settlement counsel. Litigation isn’t just expensive — it’s EXPENSIVE, all caps. And for what? The vast majority of cases settle short of trial. Do we really need to put the clients through the wringer, just so they can ultimately settle — often in a desperate attempt to stem the financial hemorrhaging caused by litigation?

There are times when litigation makes sense. A party might refuse to negotiate, or the dynamic between the parties might prevent meaningful negotiation. In some cases, it might even be necessary to use the high cost of litigation as a blunt stick to encourage settlement. But too often, the people who benefit most from litigation are the attorneys. Whatever their best intentions might be, we can’t ignore that financial incentive. Clients are certainly aware it; they know that we are keepers of the legal process, and yet we benefit the most when that process is least efficient.

Going back to the surgeons, suppose you had initially chosen surgeon B. Would it change your mind to know that surgeon B gets paid by the hour, so the more complicated the surgery, the more he gets paid? It’s not to say that the surgeon intends to hurt the patient, but what is the surgeon’s incentive to focus on the skills needed to avoid complications more consistently? The disincentive might be entirely subconscious, but it can’t be ignored.

For some lawyers, the choice is very conscious: they don’t want to give up litigation because they need the income. But there is no shortage of cases out there, and lawyers can make a very good living without litigating. In fact, we can often attract more business by modeling ourselves after surgeon B and offering highly focused services that are appealing to clients. Some of us are living proof of that, having sworn off litigation completely and focusing our efforts on being the most effective mediators, collaborative attorneys, and settlement attorneys we can be. It’s not only financially feasible, but it’s what most clients actually want!

Consider, in parting, these words of Abraham Lincoln:

"Discourage litigation. Persuade your neighbors to compromise whenever you can. 
As a peacemaker the lawyer has superior opportunity of being a good man. 
There will still be business enough."

That is exactly what settlement counsel does.

*Rackham Karlsson is a family law mediator and collaborative attorney based in Cambridge, Massachusetts. His blog and podcast series, The ADR Initiative, focuses on building profitable alternative dispute resolution businesses.

Monday, August 22, 2016

Should Parents (and especially Divorced Parents) discuss Sexting with their Teen Children? - Infographic

When parents separate or divorce, children are affected in many different ways.  If the parents fail to effectively communicate then children may not be properly prepared for the challenges that teens face in relationships.  The ubiquitous use of cell phones by teenagers has some benefits but also many dangers.

Sexting is one of the potential dangers that face all teens, but which teens of divorced and separated parents may be more susceptible to.  Parents should discuss the personal and legal ramifications of sexting with their children and this is just one of many conversations that divorced and separated parents should coordinate so that the information received by the child is consistent.

Below is an infographic with some of the information that parents and children should know about sexting and the consequences.

Permanent Picture: Teen Sexting (And What Parents Should Do About It) (via Intella Blog)

Permanent Picture: Teen Sexting (And What Parents Should Do About It)

Above is an infographic provided by Intella Blog.  Skylark Law & Mediation, P.C. provides this for informational purposes only. We do not endorse nor claim endorsement from Intella or Vound Software. Skylark Law & Mediation, P.C. is not responsible for any information contained therein, unless indicated specifically on that site.

Wednesday, August 10, 2016

2016 U.S. Presidential Platforms - What do they say about Families?

The 2016 U.S. Presidential election has many talking points and topics that engender strong reactions.  The significant difference between the various presidential candidates and their platforms explains some of the vehemence with which many defend or attack the 2016 candidates.  Since this blog focuses primarily on the impact of the law on families and family conflict, we will concentrate on only one portion of the presidential platforms:

How does each 2016 U.S. Presidential Platform address the American family?

These platforms are presented in no particular order and we do not endorse any of the following platform positions.  We are providing them specifically so you can decide for yourselves (and we encourage all eligible voters to vote in the election):

2016 Republican Party Platform Word Cloud
The 2016 Republican Party Platform mentions the words "family" or "families" 72 times, the words "child" or "children" 50 times, the word "marriage" 19 times.  The Republican party platform never uses the words "gay", "lesbian", "LGBT", or "transgender" despite referencing "traditional marriage" repeatedly.

Below are some of the excerpts from the Republic party platform's discussions relevant to families:

Excerpt in "Defending Marriage Against an Activist Judiciary":
"Traditional marriage and family, based on marriage between one man and one woman, is the foundation for a free society and has for millennia been entrusted with rearing children and instilling cultural values.... We, therefore, support the appointment of justices and judges who respect the constitutional limits on their power and respect the authority of the states to decide such fundamental social questions."
Excerpt in "The Fifth Amendment: Protecting Human Life"
"The Constitution’s guarantee that no one can 'be deprived of life, liberty or property' deliberately echoes the Declaration of Independence’s proclamation that 'all' are 'endowed by their Creator' with the inalienable right to life. Accordingly, we assert the sanctity of human life and affirm that the unborn child has a fundamental right to life which cannot be infringed. We support a human life amendment to the Constitution and legislation to make clear that the Fourteenth Amendment’s protections apply to children before birth... We support the appointment of judges who respect traditional family values and the sanctity of innocent human life. We oppose the non-consensual withholding or withdrawal of care or treatment, including food and water, from individuals with disabilities, newborns, the elderly, or the infirm, just as we oppose euthanasia and assisted suicide."
Excerpt from "Marriage, Family, and Society"
"Foremost among those institutions is the American family. It is the foundation of civil society, and the cornerstone of the family is natural marriage, the union of one man and one woman... Children raised in a two-parent household tend to be physically and emotionally healthier, more likely to do well in school, less likely to use drugs and alcohol, engage in crime or become pregnant outside of marriage. We oppose policies and laws that create a financial incentive for or encourage cohabitation. Moreover, marriage remains the greatest antidote to child poverty..."
"The data and the facts lead to an inescapable conclusion: Every child deserves a married mom and dad... Our laws and our government’s regulations should recognize marriage as the union of one man and one woman and actively promote married family life as the basis of a stable and prosperous society. For that reason, as explained elsewhere in this platform, we do not accept the Supreme Court’s redefinition of marriage and we urge its reversal, whether through judicial reconsideration or a constitutional amendment returning control over marriage to the states. We oppose government discrimination against businesses or entities which decline to sell items or services to individuals for activities that go against their religious views about such activities."
Excerpt from "Choice in Education"
"We renew our call for replacing “family planning” programs for teens with sexual
risk avoidance education that sets abstinence until marriage as the responsible and respected standard of behavior. That approach — the only one always effective against premarital pregnancy and sexually-transmitted disease — empowers teens to achieve optimal health outcomes. We oppose school-based clinics that provide referral or counseling for abortion and contraception and believe that federal funds should not be used in mandatory or universal mental health, psychiatric, or socio-emotional screening programs."
Read the full 2016 Republican Platform here.
2016 Democratic Party Platform Word Cloud
The 2016 Democratic Party Platform mentions the words "family" or "families" 72 times, the words "child" or "children" 66 times, the words "gay", "lesbian", and "LGBT" 29 times, and the word "transgender" 7 times.   The Democratic party platform never uses the word "marriage."

Below are some of the excerpts from the Democratic party platform's discussions relevant to families:

Excerpt from "Supporting Working Families"
"We will fight to secure equal pay for women, which will benefit all women and their families, particularly women of color who are disproportionately impacted by discriminatory pay practices, and against other factors that contribute to the wage gap. And we will combat the discrimination they face on and off the job. While Donald Trump thinks it is “dangerous” for women to leave the home and paid family leave hurts our economy, Democrats will make sure that the United States finally enacts national paid family and medical leave by passing a family and medical leave act that would provide all workers at least 12 weeks of paid leave to care for a new child or address a personal or family member’s serious health issue. "
Excerpt from "Guaranteeing Lesbian, Gay, Bisexual, and Transgender Rights"
"Democrats applaud last year’s decision by the Supreme Court that recognized that LGBT people—like other Americans—have the right to marry the person they love. But there is still much work to be done... We will also fight for comprehensive federal nondiscrimination protections for all LGBT Americans, to guarantee equal rights in areas such as housing, employment, public accommodations, credit, jury service, education, and federal funding. We will oppose all state efforts to discriminate against LGBT individuals, including legislation that restricts the right to access public spaces. We support a progressive vision of religious freedom that respects pluralism and rejects the misuse of religion to discriminate. We will combat LGBT youth homelessness and improve school climates. We will support LGBT elders, ensure access to necessary health care, and protect LGBT people from violence— including ending the crisis of violence against transgender Americans. We will also promote LGBT human rights and ensure America’s foreign policy is inclusive of LGBT people around the world."
Excerpt from "Guaranteeing Universal Preschool and Good Schools for Every Child"
"Democrats believe we must have the best-educated population and workforce in the world. That means making early childhood education and universal preschool a priority, especially in light of new research showing how much early learning can impact life-long success. Democrats will invest in early childhood programs like Early Head Start and provide every family in America with access to high-quality childcare and high-quality preschool programs. We support efforts to raise wages for childcare workers, and to ensure that early childhood educators are experienced and high-quality."
Excerpt from "Securing Reproductive Health, Rights, and Justice"
"We will address the discrimination and barriers that inhibit meaningful access to reproductive health care services, including those based on gender, sexuality, race, income, disability, and other factors. We recognize that quality, affordable comprehensive health care, evidence-based sex education and a full range of family planning services help reduce the number of unintended pregnancies and thereby also reduce the need for abortions."
"And we strongly and unequivocally support a woman’s decision to have a child, including by ensuring a safe and healthy pregnancy and childbirth, and by providing services during pregnancy and after the birth of a child, including adoption and social support services, as well as protections for women against pregnancy discrimination. We are committed to creating a society where children are safe and can thrive physically, emotionally, educationally, and spiritually. We recognize and support the importance of civil structures that are essential to creating this for every child."
Excerpt from "Ending Violence Against Women"
"Democrats are committed to ending the scourge of violence against women wherever it occurs —whether in our homes, streets, schools, military, or elsewhere. We will continue to support the Violence Against Women Act to provide law enforcement with the tools it needs to combat this problem..."
Excerpt from "Women and Girls"
"We will support sexual and reproductive health and rights around the globe. In addition to expanding the availability of affordable family planning information and contraceptive supplies, we believe that safe abortion must be part of comprehensive maternal and women’s health care and included as part of America’s global health programming. Therefore, we support the repeal of harmful restrictions that obstruct women’s access to health care information and services, including the “global gag rule” and the Helms Amendment that bars American assistance to provide safe, legal abortion throughout the developing world."
Excerpt from "Lesbian, Gay, Bisexual, and Transgender People"
"Democrats believe that LGBT rights are human rights and that American foreign policy should advance the ability of all persons to live with dignity, security, and respect, regardless of who they are or who they love. We applaud President Obama’s historic Presidential Memorandum on International Initiatives to Advance the Human Rights of Lesbian, Gay, Bisexual, and Transgender Persons, which combats criminalization, protects refugees, and provides foreign assistance. We will continue to stand with LGBT people around the world, including fighting efforts by any nation to infringe on LGBT rights or ignore abuse."

2016 Libertarian Party Platform Word Cloud
The 2016 Libertarian Party Platform mentions the words "child" or "children" 6 times, and the word "marriage" once.  The Libertarian party platform never uses the words "family", "families",   "gay", "lesbian", "LGBT", or "transgender".

Below are some of the excerpts from the Libertarian party platform's discussions relevant to families:

Excerpt from "Personal Relationships"
"Sexual orientation, preference, gender, or gender identity should have no impact on the government’s treatment of individuals, such as in current marriage, child custody, adoption, immigration or military service laws. Government does not have the authority to define, license or restrict personal relationships. Consenting adults should be free to choose their own sexual practices and personal relationships."
Excerpt from "Abortion"
"Recognizing that abortion is a sensitive issue and that people can hold good-faith views on all sides, we believe that government should be kept out of the matter, leaving the question to each person for their conscientious consideration."
Excerpt from "Parental Rights"
"Parents, or other guardians, have the right to raise their children according to their own standards and beliefs. This statement shall not be construed to condone child abuse or neglect."
Read the full 2016 Libertarian Platform here.

2016 Green Party Platform Word Cloud
The 2016 Green Party Platform mentions the words "child" or "children" 56 times, the words "family", or "families" 54 times,  the word "marriage" 4 time, the words "gay", "lesbian", or "LGBT" 7 times, and the word "transgender" 2 times.

Below are some of the excerpts from the Green party platform's discussions relevant to families:

Excerpt from "Families and Children"
"We call for social policies to focus on protecting families... The Green Party supports and seeks to expand Head Start and Pre- and neo-natal programs. A Children's Agenda should be put in place to focus attention and concerted action on the future that is our children... A universal, federally funded childcare program for pre-school and young schoolchildren should be developed."
"Family assistance such as the earned income tax credit, available to working poor families in which the parent supports and lives with the children, should be maintained and increased to offset regressive payroll taxes and growing inequalities in American society."
Excerpt from "Social Equality"
"The Green Party calls for U.S. passage of CEDAW, the Convention on the Elimination of all forms of Discrimination Against Women, which was adopted in 1979 by the U.N. General Assembly and ratified by 173 countries. The U.S. is one of the very few countries, and the only industrialized nation, that have not ratified it."
"We support the inclusion of an equal number of women and men in peace talks and negotiations, not only because these efforts directly affect their lives and those of their husbands, children and families, but also because when women are involved, the negotiations are more successful."
Excerpts from "Reproductive Rights"
"Women's rights must be protected and expanded to guarantee each woman's right as a full participant in society, free from sexual harassment, job discrimination or interference in the intensely personal choice about whether to have a child." 
"Women's right to control their bodies is non-negotiable. It is essential that the option of a safe, legal abortion remains available. The "morning-after" pill must be affordable and easily accessible without a prescription, together with a government-sponsored public relations campaign to educate women about this form of contraception. Clinics must be accessible and must offer advice on contraception and the means for contraception; consultation about abortion and the performance of abortions, and; abortion regardless of age or marital status." 
"We endorse women's right to use contraception and, when they choose, to have an abortion. This right cannot be limited to women's age or marital status. Contraception and abortion must be included in all health insurance policies in the U.S., and any state government must be able to legally offer these services free of charge to women at the poverty level. Public health agencies operating abroad should be allowed to offer family planning, contraception, and abortion in all countries that ask for those services. We oppose our government's habit of cutting family planning funds when those funds go to agencies in foreign countries that give out contraceptive devices, offer advice on abortion, and perform abortions."
Excerpts from "Economic Equality"
"Since, nationally, women earn only 77% of men's wages for equal work, despite outnumbering men in the workforce and despite the U.S. 1963 Equal Pay Act, we support intensified effort to see this unfair gap closed, including support for the Paycheck Fairness Act and similar legislation, and greater effort at enforcement."
Excerpts from "Sexual Orientation and Gender Identity"
"The Green Party affirms the rights of all individuals to freely choose intimate partners, regardless of their sex, gender, gender identity, or sexual orientation." 
"The Green Party recognizes the equal rights of persons who identify as gay, lesbian, bisexual, intersex, trans-sexual, queer, or transgender to housing, jobs, civil marriage, medical benefits, child custody, and in all areas of life including equal tax treatment." 
"The Green Party will enact a policy that the U.S. Government recognize all international marriages and legal equivalents, such as civil unions, in processing visitor and immigration visas."
Excerpts from "Youth Rights"
"Youth are not the property of their parents or guardians, but are under their care and guidance." 
"Youth have the right to survive by being provided adequate food, shelter and comprehensive health care, including prenatal care for mothers." 
"Youth have the right to develop in a safe and nurturing early environment provided by affordable childcare and pre-school preparation."
Excerpts from "Adoptee Rights"
"Due to current laws millions of adults that were adopted as children are now being denied access to vital records regarding their births. This is a basic human right that the Green Party should be committed to help in abolishing the secrets and lies that surround many adoptions around the world by creating necessary transparency between adoptees, their mothers and adoptive parents."
Read the full 2016 Green Platform here.

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