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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 Depart…

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 an…

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…

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 …

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…

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,…

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.

That division creates strong fee…

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 quest…

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 …

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 …

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 rig…

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 c…

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, …

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)



Above is an infographic provided by Intella Blog.  Skylark Law & Mediation,…

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):

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 pl…