Monday, April 11, 2016

4 Common but Incorrect Assumptions about Legal Custody in Massachusetts: What Does Legal Custody Really Mean?

Guest Post Series: Attorney Nicole K. Levy of Stevenson, Lynch & Owens Explores Massachusetts Law in Search of a Clear Definition for "legal custody" in Massachusetts.

There are few family law issues in Massachusetts that inspire more head-scratching confusion and incorrect assumptions than "legal custody". Unlike physical custody, legal custody is an abstract idea that purports to embody a parent’s right to participate in a child's major life decisions. In this blog series we examine four common assumptions about legal custody in Massachusetts and attempt to answer the question: what has a parent who has been awarded legal custody really received?

See how we addressed each Assumption:

Assumption 1 – Access to School & Medical Records

Assumption 2 – Consent to Medical Treatment

Assumption 3 – The Shared Custody “Veto Power”

Assumption 4 – Presumption of Shared Legal Custody

What do Massachusetts Appellate Court Decisions Really say about Legal Custody? 

The purpose of this blog series was to explore the definition of legal custody under Massachusetts law, which is virtually non-existent. Massachusetts appellate courts have addressed legal custody in a related but different context, however. There have been numerous appellate decisions in Massachusetts detailing when parents should not have shared legal custody. See Smith v. McDonald, 458 Mass. 540, 554 (2012) (shared legal custody appropriate “only if the parties demonstrate an ability and desire to cooperate amicably”); Carr v. Carr, 44 Mass. App. Ct. 924 (1998), (shared legal custody inappropriate where parents’ relationship was “dysfunctional, virtually nonexistent, and one of continuous conflict”); Rolde v. Rolde, 12 Mass. App. Ct. 398, 404 (1981) (“in order for joint custody or shared custody to work, both parents must be able mutually ‘to agree on the basic issues in child rearing and want to cooperate in making decisions for [their] children.’”).

Granted, these cases explain when parents should or should not share legal custody. If parents can communicate about their children, then legal custody is appropriate. If parents cannot effectively communicate, then one parent (often, but not always the custodial parent) should have sole legal custody. What these cases don't explain is what it means for a parent to have legal custody or not have legal custody.

What specific rights does a parent with legal custody really have? What specific limitations does a parent without legal custody really face? What does “participation” in major decisions really entail? What constitutes a “major decision” at all?

What Does Legal Custody Really Mean?

Clearly, the answer to the question above is anything but clear. We can say a few things with confidence, however. Parents who share legal custody have a vague duty to consult with one another regarding very important issues affecting their children. At a minimum, parents with shared legal custody appear to have a duty to notify the other parents of major issues involving a child’s academic, medical or religious life. Arguably, a parent with shared legal custody has a duty to at least consider the opinions of the other parent when making major decisions, although it is nearly impossible to measure a parent’s sincerity in this regard.

There is no question that the primary factor that courts and judges focus on when determining legal custody is communication. Courts look into the parents’ ability (or inability) to communicate to determine whether parties should have shared legal custody. And once shared legal custody is awarded, a judge could theoretically review a party's conduct to determine whether he or she failed to communicate, provide notice, and/or seek input from the other parent when making a major life decision on behalf of a child.

On a personal note, as recently as last year, I had a judge tell me that litigating legal custody was itself a sign that the parties lacked the ability communicate with each other about major decisions. Clearly, if one joint custodian undertakes a campaign to exclude the other from making major decisions in a child's life, a contempt judgment may conceivably be warranted. The problem is that such a contempt judgment has never been reviewed by a Massachusetts appellate court that could define the rights - and limitations - embodied by legal custody.

Examining the law of legal custody as a whole, one gets the impression that legal custody is less a “right” than a badge the courts give and take away from parents for demonstrating good co-parenting skills. Parents who demonstrate the ability to communicate with each other about their children receive the “gold star” of shared legal custody that signifies the parent’s willingness to meet the minimum requirements for co-parenting in Massachusetts. Parents who lack the ability to communicate with another parent about the children are deprived of the badge. In short, legal custody may be best understood as a tool that judges use to reward or punish parents for their co-parenting behavior that does not require the judge to change the one order that really matters: parenting time.

About the Author: Nicole K. Levy is a Massachusetts divorce lawyer and family law attorney for Stevenson, Lynch & Owens, located in Hingham, Massachusetts.

Friday, April 8, 2016

5 Things you Should Include in a Divorce Agreement when Dividing Retirement Accounts

In a divorce, the court has the ability to order the division of retirement accounts, as a one-time non-taxable event, transferring a portion of the account from one spouse to the other. Whether or not all or part of a retirement account is divided depends on the rules of that jurisdiction and the facts of each case.  In this article we're not dealing with that determination but assuming there has been an agreement or order to divide an account.  Now what?

How the account is divided, and whether a QDRO or some other specialized order is required, depends on the type of account.  Regardless of the type of account, however, there are five basic pieces of information that a Plan Administrator or QDRO drafter will need in order to properly divide the account.  When drafting a Divorce Agreement or proposed Judgment it is best practice to include these five elements:

  1. Identify the Plan Information Clearly - It may seem obvious, but the Agreement or Judgment must sufficiently identify the retirement account so it is clear what account or accounts are being divided.  Specific account numbers and additional identifying information should be included in the financial statement rather than the Agreement itself.  That way the personal financial information remains out of the public file, but is available if necessary to clarify which account or accounts are being divided.
  2. Identify the Amount or Percentage to be Divided (but not both) - The division must be expressed as a percentage of the account or an exact dollar figure to be divided.  If a percentage and a figure are included in an Agreement then it can be ambiguous if the calculations don't match.  Also, in most cases the plan will not allow for a mix of percentages and amounts (e.g. 50% of the plan minus $10,000), so avoid any mixing and complete any necessary calculations prior to finalizing the agreement.   
  3. Identify the Division Date & Coveture Period - Accounts change in value due to market fluctuations (dealt with below), but also due to withdrawals, loans, and ongoing contributions.  All of these changes can create havoc with a division if a clear date of division is not identified.  If only a date of division is identified, then it's implied that the division includes all of the retirement account from the beginning of time until the date of division.  If the parties or the court intend to exclude premarital funds (or some other agreed upon exclusion period), then that information needs to be included in the order as well.  The period of the account that would be divided is generally referred to as the coveture period.  Simply stating that the parties divide the "marital coveture" period is not sufficient because this doesn't clarify whether the end date of that period should be the agreement date, the Judgment of Divorce Nisi date, or the Judgment of Divorce absolute date.  The agreement or order should define the "marital coveture" period if that term is used.
  4. Identify whether Market Gains & Losses are to be included in the Division - Divisions are not immediate.  Even in the simplest of cases the paperwork takes time to be completed, submitted and reviewed.  During that time, fluctuations in the investments for retirement accounts can be significant.  It is typical to include these fluctuations so that, as much as reasonably possible, the division approximates how each portion would have performed separately if they were divided as of the agreed upon date of division.  However, if this is not specified then it may not be clear whether gains & losses should be included.
  5. Identify whether Loans are Included - If a loan has been taken out against a retirement account then that will be reflected in the value.  If the division is a percentage than the Agreement or Order needs to specify whether the percentage is to be taken from the total account value (including the loan amount) or the net value (not including the loan amount).
These five requirements apply in almost every situation, but this is not an exhaustive list and there may be additional considerations depending on the circumstances of each case.  For example, if you intend to use a marital coveture period in a long-term marriage, you may want to check to see if the plan has records that date back to the date of marriage.  Records are not always available if the marriage date is far enough in the past.

Also, some plans may require addressing specific additional information, and in every case you and your lawyer should review the Summary Plan for the account to ensure that there aren't any unusual requirements.  For example, U.S. Military Thrift Savings Plans have special rules and don't follow QDROs, but similar orders can be created that have the same effect.  A plan that is more typical than a military pension is a private pension plan with survivor benefits.  These types of plans require the following additional information to be specified in the agreement or order:

Additional Information for Pensions with Survivor Benefits:

  1. Identify the Survivor Beneficiary - In a pension plan that includes survivor benefit options, those options are like an additional asset that needs to be addressed.  If the parties agree or the court decides that it is a marital asset, then that portion of the pension may need to be assigned as well.  If the ex-spouse is not designated as the survivor beneficiary then the plan owner will be able to change it to someone else, or if they remarry, the new spouse may automatically be their survivor beneficiary.
  2. Identify the Plan Option - In a pension plan that includes survivor benefit options, there are often multiple options that the plan owner can choose from at the time of retirement.  Usually choosing to reserve a survivor benefit reduces the lifetime benefit.  A QDRO can require that a particular option be selected, and this should be decided at the time of drafting the Divorce Agreement.  In addition, if an option with a survivor benefit is chosen, the QDRO may need to specify how the reduced lifetime benefit is effected: i.e. is the reduction shared by the parties or does the reduction only come out of the ex-spouse's share of the lifetime benefit?
Since retirement accounts are often some of the largest assets in a divorce, these issues can be particularly valuable to clients and require care by practitioners when drafting Agreements or Proposed Judgments.  If you're not sure if an Agreement completely addresses all of the retirement account issues, consider hiring someone who prepares QDRO or Retirement Division documents prior to finalizing your Agreement and have them review your draft language.  

If you would like a copy of our Sample Language for division of retirement accounts, or if you need someone to review your draft language or prepare a QDRO, contact us here.

Thursday, April 7, 2016

I've hired a Lawyer, do I need a Mediator too?

In response to our recent article, I'm in Mediation, do I need a Lawyer too?, mediator Stephen G. Anderson asked on twitter:

We though this was a great question, so here you go Stephen:

I've hired a Lawyer, do I need a Mediator too?

Even though many mediators are lawyers, mediators perform a very different service than lawyers.  One of the first things I tell my mediation clients is that, although I have a base of legal knowledge to draw from when assisting them, I am not acting as their lawyer when I am mediating.  But if you already have a lawyer, would you want a mediator too?  If you want to resolve your dispute privately, with less cost, and more control, then the answer is quite simply: YES.

Because the mediator role is different than the role that your lawyer serves there are numerous benefits to hiring a mediator to work with you and your lawyers, and some risks as well.  Below is a summary of the pros and cons:

Benefits of Hiring a Mediator to Assist with Your Case:

One Alternative to Mediation
  • Privacy - Mediation occurs in a private and confidential setting, instead of a public courthouse.  Privacy encourages people to speak openly and honestly, and confidentiality encourages people to share information and acknowledge each other, rather than posture.  
  • A Resource for Additional Information - While a mediator cannot provide legal advice, they can provide information that may be relevant to your case.  Depending on the mediator you choose they may have an expertise that is different than your attorney.  For example, if you work with a child development specialist to mediate your parenting plan, they may be able to provide information about how children react to parenting plans at different ages.  This is information that your lawyer may not have training in.  
  • A Resource for Neutral Information - Even when a mediator is providing legal information that you could each individually get from your lawyers, that information may be received better by both sides when presented in a neutral way.  It may also be more efficient for both parties to hear the information from one source, rather than pay two attorneys to tell them the same thing separately.
  • Improving Communication - Mediation focuses on better communication of interests and goals to assist parties in understanding each other and thereby reaching resolution of their dispute.  When attorneys negotiate for clients (or argue in court), the clients aren't improving their own communication.  If there is an ongoing relationship between the parties, then this conflict is an opportunity to find communication techniques that can assist the parties in resolving future conflicts as well.  For co-parents this could mean years of effective co-parenting instead of the alternative of calling attorneys every time a new conflict arises, which only benefits the attorneys.
  • A Forum for Being Heard - While many people think going to court is an opportunity to tell their side of the story, mediation is actually a much better forum for both parties to have this chance.  Very few court cases actually make it to trial, and even when they do, testimony is limited by evidence rules, practicality and time.  Mediation, on the other hand, is a forum that encourages both sides to explain what they feel is relevant, even if a court wouldn't agree.
  • Increased Control - In mediation, each party has a say in the process and the outcome.  Because mediation is voluntary, parties can choose what type of process they want and they control the timeline.  In addition, because a mediator doesn't make a decision like a judge does, resolution requires that both parties agree, giving them full control over the outcome.  
  • Reduced Cost - Mediation typically costs less financially and emotionally than litigation.  If the parties meet with the mediator without attorneys present for the meetings then that time is spent with one professional instead of two or three, which is cheaper.  However, even when parties attend mediation with their lawyers, the cost is usually less than court.  The cost is less because the parties control the process and the timeline and there is no wasted time waiting in a busy courtroom for a hearing.  In addition, less time is spent posturing in positional negotiation when both parties are committed to finding resolution.  
  • Another Perspective - Every professional has different levels of experience, and your mediator may think of an option or solution that you, the other person and the attorneys all missed.

Risks of Hiring a Mediator:

  • One Step Forward, Two Steps Back - If you reach agreements in a mediation meeting and then your lawyer gives you advice that changes your mind that could destroy the progress you made in mediation and end up costing more.
  • Possible Wasted Time & Cost - If you work with a mediator and fail to reach agreements, you may feel that the process was a waste of time and you're back at square one, having now spent some of your funds on a mediator.  
  • Another Perspective - While this can also be a benefit, sometimes there are too many cooks in the kitchen to get things done.
  • Lack of Court Protections - The Court rules can sometimes provide protection for clients that a mediation doesn't provide.  For example, temporary agreements in a mediation are not enforceable in the way that temporary court orders are.

Minimizing the Risks:

Despite these risks, at Skylark Law & Mediation PC, we typically recommend that our clients try mediation first.  Even though there are risks, all of these risks can be minimized or eliminated if you know about them ahead of time.

  • One Step Forward, Two Steps Back: You can minimize this risk by working with a mediation-friendly lawyer from the beginning of your case and getting legal information and advice before you reach agreements.  Then you will never feel uninformed. 
  • Possible Wasted Time & Cost - Participating in mediation in good faith will often lead to improved communication, even if a full resolution isn't reached.  Therefore, even when mediation fails it often shortens the time parties take to reach resolution through other avenues, ultimately saving them time and money in the long run.  However, with any expense there is a risk that it won't work.  To minimize this risk ask good questions at your initial meeting to figure out if the process is really right for you.  If both parties are entering the mediation informed about how it works, it is very unlikely to be a waste of time or money.
  • Another Perspective - You can minimize this risk by not trying to repeat every conversation with your lawyer and your mediator.  Use each for their particular expertise.  
  • Lack of Court Protections - Even if yours is a case that requires some court protections, it is possible to participate in mediation after starting the court process. Discuss with your lawyer whether there are certain court protections that are necessary to protect your interests.  For example, temporary agreements reached in mediation can be entered as temporary orders in court if both parties agree.  When mediators and mediation-friendly attorneys work together, clients can often get the advantages of both the court and the mediation processes.

To ensure that you hire a lawyer and a mediator who will help you minimize the risks and maximize the benefits of a mediation, read our previous articles: What Questions Should You Ask Before Hiring an Attorney: a Mediator's Perspective and What Questions Should You Ask Before Hiring a Divorce Mediator?.

Wednesday, April 6, 2016

4 Common but Incorrect Assumptions about Legal Custody in Massachusetts: Assumption 4 – Presumption of Shared Legal Custody

Guest Post Series: Attorney Nicole K. Levy of Stevenson, Lynch & Owens Explores Massachusetts Law in Search of a Clear Definition for "legal custody" in Massachusetts.

There are few family law issues in Massachusetts that inspire more head-scratching confusion and incorrect assumptions than "legal custody". Unlike physical custody, legal custody is an abstract idea that purports to embody a parent’s right to participate in a child's major life decisions. In this blog series we examine four common assumptions about legal custody in Massachusetts and attempt to answer the question: what has a parent who has been awarded legal custody really received?

Assumption 4. Shared Legal Custody is Presumptive 

Finally, an assumption about legal custody in Massachusetts that is supported by some law! The Massachusetts divorce statute does indeed make shared legal custody for married parents presumptive at the temporary order stage:
[U]ntil a judgment on the merits is rendered, absent emergency conditions, abuse or neglect, the parents shall have temporary shared legal custody of any minor child of the marriage; provided, however, that the judge may enter an order for temporary sole legal custody for one parent if written findings are made that such shared custody would not be in the best interest of the child. Nothing herein shall be construed to create any presumption of temporary shared physical custody.
However, nothing in the statute says that shared legal custody is presumptive for parents when they finally get divorced. Despite the statute’s limitation to temporary orders affecting still-married parents, it is fair to say that Massachusetts probate court judges carry a heavy preference for granting shared legal custody to divorced parents. Perhaps the absence of a clear statutory presumption in favor of shared legal custody for divorced parents is irrelevant, given the practical reality that most divorced parents end up with shared legal custody anyway. As a divorce practitioner, however, there remains something unsettling about judges reaching legal decisions based on habit or assumption rather than clear legal authority.

On the other hand it is unquestionably true that there is a presumption against shared legal custody in cases involving unmarried parents. The Massachusetts unmarried parent statute unambiguously limits shared legal custody at all stages of the proceedings, as follows:
In awarding the parents joint custody, the court shall do so only if the parents have entered into an agreement ... or the court finds that the parents have successfully exercised joint responsibility for the child prior to the commencement of proceedings … and have the ability to communicate and plan with each other concerning the child's best interests.
The statute’s requirement that the court make an affirmative finding before ordering shared legal custody for unmarried parents is almost stunningly unambiguous for a Massachusetts lawyer who is used to wide-open, practically non-existent legal standards such as, “custody shall be based on the best interest of the child”. In the sea of uncertainty surrounding legal custody in Massachusetts, M.G.L. c. 209C § 10 alone provides a meaningful, legal standard that parties, lawyers and court can actually follow. The clarity is refreshing, regardless of how one feels about the substance of the law.

Previous Post: Assumption 3 – The Shared Custody “Veto Power”

Next Post: What does Legal Custody Really Mean? (Coming Soon)

About the Author: Nicole K. Levy is a Massachusetts divorce lawyer and family law attorney for Stevenson, Lynch & Owens, located in Hingham, Massachusetts.

Monday, April 4, 2016

4 Common but Incorrect Assumptions about Legal Custody in Massachusetts: Assumption 3 – The Shared Custody “Veto Power”

Guest Post Series: Attorney Nicole K. Levy of Stevenson, Lynch & Owens Explores Massachusetts Law in Search of a Clear Definition for "legal custody" in Massachusetts.

There are few family law issues in Massachusetts that inspire more head-scratching confusion and incorrect assumptions than "legal custody". Unlike physical custody, legal custody is an abstract idea that purports to embody a parent’s right to participate in a child's major life decisions. In this blog series we examine four common assumptions about legal custody in Massachusetts and attempt to answer the question: what has a parent who has been awarded legal custody really received?

Assumption 3: A Parent with Shared Legal Custody can “Veto” the Major Educational, Medical and/or Religious Decisions of the Other Parent

Many parents believe that shared legal custody provides a kind of "veto power" over major decisions the other parent makes on behalf of a child. Such a maximalist interpretation of the power of legal custody is unsupported by Massachusetts case law and statutory law, however.  The best thing one can say about appellate law defining legal custody is that it is incredibly rare.  Believe it or not, the following passage from O'Connell v. Greenwood, 59 Mass. App. Ct. 147, 150-153 (2003), represents the closest a Massachusetts court has ever come to defining the rights and limitations embodied in “shared legal custody:”

Although the concept of shared legal custody gives both parents a responsibility for a child's religious development, that concept does not provide either with a veto over exposure to disagreeable religious beliefs. On the contrary, neither parent's constitutional right to practice a particular religion and to expose a child to the parent's religious beliefs may be restricted absent a demonstrated and compelling State interest in the restriction. … Such an interest may exist if exposure to a particular religious belief or practice causes the child substantial injury. ….  We address one final issue before concluding. As the father asserts for the first time here, there may be instances where one parent's actions do not violate specific components of an order for shared legal or physical custody and yet, in the aggregate, so fully and completely seek to exclude the other parent from the child's life that they violate the very premise on which the order is based. We do not resolve the issue because it was not raised in the trial court and it was not the theory on which the case was pleaded or tried.
In the twelve years that have elapsed since O'Connell was decided, no Massachusetts appellate court has expanded on this afterthought of a definition for shared legal custody. (I encourage you to search Massachusetts case law for a clearer definition of "legal custody" than the above.  Please let me know if you find it.) In the meantime, what O'Connell tells us is this: in order to show that the one parent "violated" shared legal custody, a parent must present evidence that the other parent's conduct "so fully and completely [sought] to exclude the [first] parent from the child's life that [the second parent's actions] violate the very premise" of shared legal custody.

What does O'Connell standard even mean? We don’t really know, beyond saying that the rights embodied in shared legal custody are so weak that only a systematic and extreme campaign of exclusion by one parent would qualify as a “violation” of shared legal custody. In other words, shared legal custody does not enable one parent to veto the decisions of the other. Under O'Connell, a parent with shared legal custody appears to possess only a weak, ill-defined, and hard to enforce right to “participate” in major decisions affecting a child. Whatever shared legal custody provides, the right to veto another parent’s decision isn’t part of it.

Previous Post: Assumption 2 – Consent to Medical Treatment

Next Post: Assumption 4 – Presumption of Shared Legal Custody (Coming Soon)

About the Author: Nicole K. Levy is a Massachusetts divorce lawyer and family law attorney for Stevenson, Lynch & Owens, located in Hingham, Massachusetts.

Friday, April 1, 2016

Walking, Talking & Mediating

One of the advantages of mediation is the flexibility of the mediation process.  For those people whose conflict includes multiple issues, as is often the case in divorce mediation, skilled mediators can adapt and assist with communication, goal-setting, problem-solving, and in some instances even transformation of a relationship.

To allow the mediation process to adapt in this way we sometimes have to look at options for meeting that are unconventional to help people see their issues in a new light.  At Skylark Law & Mediation, we have two conference rooms that are very different for exactly this purpose.  

One conference room is more business-like and is more appropriate for discussing financial and legal issues.  Our other conference room is more casual, including pictures of my children on the walls.  I find that clients usually feel this setting is more comfortable for discussing parenting disagreements, or communication issues.

Meeting only in conference rooms, however, can be limiting.  Conflict doesn't only occur in a board room.  Conflict occurs in the dining room, and the living room, and the bedroom, and outside, and in the car, and so on.  So why do we only mediate conflict in a conference room?

Now, I'm not suggesting that we mediate conflict in people's bedrooms, but I think there is a value to giving people the opportunity to stand up and move around when problem solving.  As the other attorney/mediators at Skylark can attest I typically walk around the office when on the phone.  I find it easier to stay calm and think on my feet while literally being on my feet.  So I was intrigued when I recently discovered a company in D.C. called Netwalking, LLC which helps organize walking meetings.  The idea of movement and walking during a meeting, especially one that can be as emotional as a divorce mediation, seems to be a natural fit.  

The Cochituate Rail Trail
Therefore, I've decided to start offering our clients the option of meeting outside on the walking path behind our office (weather permitting).   The Cochituate Rail Trail starts right behind our office and is a paved and low impact walking trail.  It is an ideal location for a walking mediation meeting and it is as private as an outside walk is likely to get. 

The walking mediation meeting obviously won't fit every situation.  For example, it won't be appropriate with conversations that may require the complete privacy of the office setting.  However, if mediation is going to be flexible and adapt to the situation, then we may need to adapt more than just the arrangement or style of our chairs.  It may be time to think outside the conference room.

If you're interested in the possibility of a walking mediation meeting, schedule a consult here and tell us about your interest in this option.

Related Posts Plugin for WordPress, Blogger...