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Tuesday, December 11, 2018

The Alimony Reform Act: Lessons Learned in the Last Six Years

by Valerie Qian & Justin L. Kelsey

The Alimony Reform Act of 2011 defined what alimony is and how it should work in much greater detail than the prior law.  The Alimony Reform Act, 2011 Mass. Acts ch. 124. However, it also left many questions unanswered. In the six years since the Act became effective, on March 1, 2012, the courts have slowly been further clarifying, and in some cases arguably undercutting, the Act.  In this article, we will summarize the provisions of the Act and note the court cases that have affected the language of those sections.


Alimony: What is it? 

Alimony is defined in the Act as ' the payment of support from a spouse, who has the ability to pay, to a spouse in need of support for a reasonable length of time, under a court order.' Mass. Gen. Laws ch. 208 §48 (2012) [hereinafter §48].

Since March 2012, the courts have made clear that this is how the law has defined alimony even prior to the Act, and the Act did not change this (except for the addition of “reasonable length of time”).  
“The Act altered neither the fundamental purpose nor the basic definition of alimony: ‘the payment of support from a spouse, who has the ability to pay, to a spouse in need of support.’ G. L. c. 208, § 48.” Hassey v. Hassey, 85 Mass. App. Ct. 518, 522, 2014.

The federal definition of alimony is a little different.  In order to qualify for tax deductibility to the payor, the Internal Revenue Code requires that the alimony payment must be in cash, received as a result of a divorce instrument executed prior to December 31, 2018, while the payor and payee spouse are not living in the same household, and where the payment terminates upon the death of the recipient spouse. 26 U.S. Code §71 (2018).  See also The Tax Cut and Jobs Act, Pub. L. No. 115-97 (2017, removing the alimony deduction for agreements entered after December 31, 2018).

What are the types of alimony?

The Act separates alimony into four different types, with distinct purposes. The type of alimony that most cases will have is dubbed “general term alimony” and refers to any type of support paid by one ex-spouse to another ex-spouse who is “economically dependent.” §48, supra.  Section 4 of the Act, which was not incorporated into the General Laws, indicates that prior alimony awards “shall be deemed general term alimony.” The Alimony Reform Act, supra at §4.

The Act also creates a form of alimony called “rehabilitative alimony,” which is paid to an ex-spouse who is anticipated to become economically independent “by a predicted time.” §48, supra.   The “predicted time” need not be a specific date, or even a specific expected future event of self-sufficiency such as graduation from an educational program, for example, so long as there is a general expectation that the recipient should be able to find reemployment in the future. Zaleski v. Zaleski, 469 Mass. 230, 234 (2013). 

Two other forms of alimony created by the Act apply only to marriages of five or fewer years: reimbursement alimony which is used to reimburse a spouse for contributions to the marriage; and transitional alimony which is used to allow a spouse to transition to a new location or lifestyle. §48, supra.

The Act requires that to determine the appropriate form, duration, and amount of support the court must consider:

“the length of the marriage; age of the parties; health of the parties; income, employment and employability of both parties, including employability through reasonable diligence and additional training, if necessary; economic and non-economic contribution of both parties to the marriage; marital lifestyle; ability of each party to maintain the marital lifestyle; lost economic opportunity as a result of the marriage; and such other factors as the court considers relevant and material.” Mass. Gen. Laws ch. 208 §53 (2012) [hereinafter §53].

A judge must consider these mandatory factors when deciding the form of alimony, and should not consider any “irrelevant factors,” but has broad discretion in this evaluation so long as “the record indicate[s] clearly that the judge considered all the mandatory factors.”  Zaleski, supra at 236.

What is the correct amount of alimony?

The Act provides guidance for setting alimony orders by giving divorcing parties and attorneys a formula to calculate the maximum amount of alimony that can be paid by one former spouse to another.  §53, supra at (b).  Alimony, except for reimbursement alimony, is capped at the recipient’s “need” or 30-35% of the difference in the parties’ gross incomes.  Id.

The Act provides that “gross income” for alimony purposes should be defined in the same way it is defined in the Massachusetts Child Support Guidelines, subject to certain limitations.  Id.  This means that bonuses are included in a party’s income for alimony purposes, as the Zaleski case confirms.  Zaleski, supra at 243.  There are differences, though. For example, distinguishing the income used for alimony from child support, the Vedensky case indicates that if a payor spouse obtains a new second job after the initial order of alimony, there is a presumption against including this new job in a future Modification of the original alimony order.  Vedensky v. Vedensky, 86 Mass. App. Ct. 768, 778 (2014).

Despite a temptation to use the Act’s formula in all alimony cases, the Hassey case makes clear that alimony is still defined by the payor’s ability to pay and the recipient’s need for financial support:

“Although the Act creates express guidelines to aid judges in fashioning alimony orders, it does not alter the principle that the central issue relevant to a financial award is the dependent spouse's ‘need for support and maintenance in relationship to the respective financial circumstances of the parties.’ Partridge v. Partridge, 14 Mass. App. Ct. 918 , 919 (1982).” Hassey, supra at 524.

It is not appropriate to simply apply the formula for the cap and use that formula in all situations as a starting point.  Need can obviously be less than the formula cap, and in Hassey, the Appeals Court noted that need can also exceed the formula and an amount greater than 35% would be permissible “if based on a specific determination of the recipient’s need…”  Id. at 526.   Of course, this leads to the question:

What is “need?”

Since the Act, the courts have clarified that “need” is a relative term and must reflect the parties' marital lifestyle in addition to other mandatory considerations contained in § 53(a) (as quoted above).  Zaleski, supra at 243. However, the courts have also made clear that judges have significant discretion in setting orders. In the Zaleski case, for example, the Supreme Judicial Court allowed a lower court to find that the parties overspent during their marriage and therefore their “need” was less than the lifestyle they had enjoyed during the marriage. Id.

Court cases since 2012 have also clarified that “marital lifestyle” need is tied to the time-period of the marriage.  If the parties have been separated for a period of time prior to the filing of a divorce action, the lifestyle of the recipient spouse during the marriage, and not just during the period of separation, should be a factor in determining the amount of alimony.  Steele v Steele, 85 Mass. App. Ct. 1113 (2014, Rule 1:28 decision).  Need is not defined by the standard of living a spouse would have enjoyed in the future had he/she remained married to the payor spouse. Young v. Young, 478 Mass. 1, 3 (2017).

What is the correct length of alimony?

Under the Act, rehabilitative alimony presumptively ends in five years, the remarriage of the recipient, or the death of either spouse.  Mass. Gen. Laws ch. 208 §50 (2012). General term alimony ends upon the remarriage of the recipient spouse or death of either party, and its duration is capped at certain percentages of the length of the parties’ marriage:

• 50% of the length of the marriage for a marriage of 5 years or less
• 60% of the length of the marriage for a marriage of 5 – 10 years
• 70% of the length of the marriage for a marriage of 10 – 15 years
• 80% of the length of the marriage for a marriage of 15 – 20 years, and 
• indefinite duration for a marriage of more than 20 years.  Mass. Gen. Laws ch. 208 §49(a-c) [hereinafter §49].

General term alimony orders set under the Act also presumptively end upon the payor reaching full Social Security retirement age.  Id. at §(f).   The courts have the discretion to order alimony beyond the payor’s social security retirement age, but under one of the first 1:28 decisions released after the Act, the Appeals Court directed that the lower court must clearly explain in writing the reason for ordering alimony past social security retirement age.  Green v. Green, 84 Mass. App. Ct. 1109 (2013, Rule 1:28 decision).

Since the Act, the courts have clarified that alimony that is ordered on a temporary basis under a temporary court order does not count towards the maximum duration of general term alimony that a payor may have to pay under the statute. Holmes v. Holmes, 467 Mass. 653, 659 (2014).  Under the Holmes case, the court also noted that the duration limits are maximums, and the court has the discretion to order alimony for a shorter duration of time than the maximum duration allowed under the statute. Id. at 660.

The Act also creates a presumption that alimony will be suspended, reduced, or terminated when a recipient spouse has been sharing a common household for three or more months with someone and lists factors that the court should consider in determining how the relationship might affect the alimony order. §49, supra at (f). 

When can an alimony order be modified? 

Under the Act, the court can modify the duration or amount of alimony “upon a material change of circumstances warranting modification,” “unless the payor and recipient agree otherwise.” Id. at (e).  The Act makes clear that existing orders that were non-modifiable or survived still cannot be modified, and this has been reaffirmed by the Appeals Court. Lalchandani v. Roddy, 86 Mass. App. Ct. 819, 822 (2015).

A “material change of circumstances” is not defined specifically in the statute, and is case specific.  For example, even in a case where the recipient’s income, or ability to earn income, had increased, the court found that a material change could still be sufficient where the recipient’s need at the time of the modification had increased and was greater than her income, and the payor had increased assets, decreased expenses and was able to pay the additional support.  Flor v. Flor, 92 Mass. App. Ct. 360, 364 (2017).

In the same case, the court found that a child’s emancipation and the resulting ending of child support could qualify as a change in circumstances. Id. This was the case even though a child’s reaching “adulthood” is an event that was obviously anticipated at the time of the divorce, but in this case not specifically identified in the Agreement as qualifying as a change in circumstances.  Id.

Because the determination of what qualifies as a “material change” is vague, some parties and courts may want to avoid potential returns to court by incorporating a self-modifying order that changes with the parties’ incomes.  In the Hassey case, the Appeals Court addressed whether a self-modifying order created by a judge was permissible under the Act. Hassey, supra. The self-modifying provision in Hassey was vacated because:

1) it set up future modifications of alimony that would not be based on a judge’s finding that the recipient’s need, and the payor’s ability to pay, had both increased at the time of each modification, and 
2) it only required the payor to disclose his income going forward, and did not take the recipient’s income into consideration. Id. at 527-528.

The Appeals Court took care not to indicate that all self-modifying orders are prohibited. Id. Parties who wish to use self-modifying provisions in their Agreements may do so, but should be careful to ensure that whatever mechanisms they put in place to modify alimony in the future give due consideration to what future need and ability to pay may be, and provide for possible modification if the circumstances change so that the self-modifying provisions are no longer viable.  This requires careful and thoughtful drafting.

Do the same rules for modification apply to pre-Act cases?

Section 4 of the Act, which was not incorporated into the General Laws, indicates that the changes to the statute are not sufficient, by themselves, to warrant a material change of circumstances as to the modification of amount.  The Alimony Reform Act, supra at §4.  However, “existing alimony judgments that exceed the durational limits under section 49 of said chapter 208 shall be deemed a material change of circumstance that warrant modification.”  Id.

This means that, in a case with a merged pre-Act agreement for alimony in which the only change in circumstance is the passage of the Act itself, only the duration of that award can be modified and only if the award exceeds the percentage durational limits contained in §49(b).  Id.

This ability to modify the duration of pre-Act awards does not apply to the other duration endpoints in the statute.  The SJC ruled that pre-Act alimony awards cannot be modified due to the payor reaching full retirement age if the original agreement provided for a later termination date.  Chin v. Merriot, 470 Mass. 527 (2015); Rodman v. Rodman 470 Mass. 539 (2015); and Doktor v. Doktor 470 Mass. 547 (2015).   While the Act has language presumptively ending alimony when the payor reaches full retirement age, the SJC ruled in these three cases that this portion of the Act does not apply retroactively to agreements approved by the courts or judgments before the Act became effective on March 1, 2012.

Similarly, pre-Act agreements and judgments cannot be retroactively modified to allow alimony to terminate or be suspended pursuant to the cohabitation language in the Act.  Chin v. Merriot, 470 Mass. 527 (2015).  While these cases limit use of the Act to provide an automatic modification for cohabitation or full social security retirement age, the “material change” in circumstances provisions still apply.   This means that if a recipient’s cohabitation reduced their need materially, or a payor’s actual retirement reduced their ability to pay materially, then a modification might still be appropriate.  This type of modification would be based on the pre-Act case law, and not the provisions of the new Act.  For example, the pre-Act Pierce case contains direction as to how the court must balance a payor’s “good faith retirement” with the other factors relating to support.  Pierce v. Pierce, 455 Mass. 286, 28 (2009).

Recent cases have also questioned whether the retroactive application of the duration limits in §49(b) is constitutional.  In Van Arsdale and Popp, cases which came down the same day from the SJC in 2017, the court ruled that this option for retroactive modification of duration is constitutional and does not violate due process.  Van Arsdale v. Van Arsdale, 477 Mass. 218 (2017); and Popp v. Popp, 477 Mass. 1022 (2017).    The court reasoned that the Act only creates a presumption for a certain duration of alimony in each case, not an automatic termination date that applies regardless of circumstances.  Id. In each case, the presumption can be argued against by either party, and therefore allows for proper due process.  Id.

Because of these differences between pre-Act and post-act cases, it is important to note that modification of pre-Act cases are subject to the pre-Act rules on these issues.  This means that a pre-Act Separation Agreement that reserved the right to future alimony but waived past and present alimony is considered a “pre-Act” initial order when seeking future alimony. Flor, supra at 365.  Contrast this with the Snow case, in which the initial divorce did not mention alimony at all, and therefore the modification case was treated as an “initial order.”  Snow v. Snow, 476 Mass. 425, 429 (2017).

Is alimony tax-deductible to the payor and taxable income to the recipient?

Until the passage of The Tax Cuts and Jobs Act in December 2017, alimony that met the definition in the tax code was tax-deductible to the payor spouse and taxable to the recipient spouse.  26 U.S. Code §71 (2018).   This means that for federal tax purposes, across all states, payor spouses have been able to deduct their alimony payments from their gross income, and the tax burden of higher-earning payor spouses has been shifted to recipient spouses in lower income tax brackets.  Divorced couples as a unit have thus paid lower income taxes overall to the IRS under this previous tax treatment of alimony.

The Tax Cuts and Jobs Act has ended this “tax benefit” for any divorce or separation instrument executed after December 31, 2018.  The Tax Cut and Jobs Act, supra.  The tax deductibility of alimony will only remain in effect for divorce instruments that are executed on or before December 31, 2018. Those who already have divorce instruments for alimony, or have them on or before December 31, 2018, can continue to take advantage of the old rule for tax deductibility, unless they expressly state that they want the Tax Cuts and Jobs Act to apply to them.  Id.

The waiting period in Massachusetts, (90 to 120 days for the finalization of a Judgment when a Separation Agreement is approved) raises the question of how the IRS will define this December 31, 2018 deadline.  No one will know for sure until the IRS weighs in on these issues, but the simplest interpretation of the plain language of the Tax Cut and Jobs Act would suggest that as long as a Separation Agreement is signed by both parties and notarized on or before December 31, 2018, any agreements for alimony should still be tax deductible.

The Tax Cut and Jobs Act defines the term ‘divorce or separation instrument’ as:

“(i) a decree of divorce or separate maintenance or a written instrument incident to such a decree,
(ii) a written separation agreement, or
(iii) a decree (not described in clause (i)) requiring a spouse to make payments for the support or maintenance of the other spouse.” The Tax Cut and Jobs Act, supra. 

The loss of this deduction for instruments signed after December 31, 2018 will also raise additional questions about the application of the Alimony Reform Act.  The formula for capping the general term alimony amount, for example, was written at a time when 30-35% of the difference in income took into account the tax deductibility of alimony to the payor.  This cap is much higher when considering the change in tax law, and perhaps will require a stronger focus on the “need” provisions in the Act and subsequent cases.

If nothing else, these questions guarantee the ongoing need for thoughtful mediation of cases, and the promise of future appeals for those who fail to find solutions out of court.

First Published in the MCFM Family Mediation Journal.

Friday, December 7, 2018

Valerie Qian Accepts Position in the Circuit Executive's office of the US Court of Appeals for the First Circuit

We are very excited to announce that on December 10, 2018, Valerie Qian will begin a position in the Circuit Executive's office at the United States Court of Appeals for the First Circuit.  While this departure will prevent Valerie from continuing to represent and mediate for Skylark's clients, we want to wish her the best of luck in this new endeavor.

Valerie's Message:

After more than five and a half years, I will be leaving Skylark Law & Mediation, where I have been since the days we were still called Kelsey & Trask and our offices were located in Framingham. I am sad to be leaving the team after so long.

I've learned a lot here from Justin, Melissa, Beth, Julie and Jen and others from the team who have moved on over the years, and will look back with fond memories at the time I've spent here. I'll be moving on to a position in the Circuit Executive's office at the United States Court of Appeals for the First Circuit, and commuting to Boston for work now.

It will be very different but I'm excited for this new adventure and the different ways I hope to grow and serve our community there. Many thanks to Justin and Melissa and everyone else, and I will miss you!


If you have any questions about this transition, please do not hesitate to contact Skylark Law & Mediation, PC or Justin L. Kelsey, Esq. online here or at 508.655.5980 with any questions. 

Thursday, November 1, 2018

The Questions that Lawyers and Mediators aren't asking but should: Let's talk about Pronouns

I recently had the opportunity to train with two of the most prominent mediators in Massachusetts: John Fiske and Diane Neumann. Each time they run a training, John and Diane share what they think is the most important question for a client to answer to have an effective mediation. John says that he thought the most important question is "What do I want?" But then he will tell you, with a knowing smile, that Diane disagreed with him and she would say that the most important question for a client to answer is "Who am I?"

I agree with Diane. The best lawyers and mediators ask their clients not just about what they want, but also deep questions about the clients' identity, goals, and values in order to help the clients resolve conflict in the most effective way possible. Despite knowing this, we often fail to ask clients the simplest questions when we first meet them or have them fill out an intake. We fail to give them an opportunity to answer the question “Who am I?” in the most basic form because most of us don't ask two simple questions:

My Preferred Name or Nickname is: _________________

My Pronouns are: _________________

     Who am I?

Before continuing, I want to acknowledge that I may not be the best person to write this article because I have not personally experienced any societal pressure regarding how I self-identity. I was assigned male at birth (AMAB) and identify as male (this is referred to as cis-gender). I am also white living in a predominately white town, county, state, and country. I am heterosexual. I am tall, broad-shouldered, and I have a deep voice. All of these things mean that when someone sees me in my community many of the assumptions they make about me are probably correct without my having to say anything about how I identify.

This is privilege because I am acknowledged and respected for how I identify myself, without ever having to explain it or feel excluded. It is privilege because it is not a benefit that everyone enjoys. I get to define myself and my hope is that you, the reader, will see that everyone should have the same right to define themselves without having to explain it or feel excluded.

Although I may not be the best person to write this post, I believe it is also important for allies to share their support and to acknowledge that while my voice comes from a place of privilege, it is also my responsibility to use that privilege to support those denied the same voice. In doing so, though, I'm going to rely heavily on the resources and assistance of others who speak from personal experience.

     Educate Yourself

In the past, I made assumptions about how I to refer to clients, and what pronouns they use. I am guilty of asking my clients only for a full legal name. If I asked a client what name to use, it was often a lawyer-like leading question: "I prefer to use first names, is that okay with you?" I never asked about pronouns. This is partly because I hadn't had enough education about the many ways in which people might self-identify, but primarily because of the silent but present privilege inherent in my own identity.  I didn't think it was important because it wasn't important to me.

I can honestly say, in my lifetime, no one has asked me what my pronouns are and have always assumed my pronouns are he/him. As I explained above, this has never been a problem for me because those are the pronouns that reflect my cis-gender identity. I had to educate myself about the question “Who am I?” to realize the frustration I may be unintentionally causing my clients. Luckily, we live in an era where resources are available and plentiful to educate oneself about the complicated nature of identity. 

I took a course offered by Massachusetts Continuing Legal Education on Transgender Persons & the Law (that program is still available as a webcast here) and I recommend it. You can also find resources online or from your local LGBTQ+ groups.  One site that has particularly helpful resources is the Trans Student Educational Resources site, including a visual breakdown of the differences between gender identity, gender expression, and sexual orientation, the Gender Unicorn.

Graphic by TSER, click for more info.
As a visual learner, I found this resource particularly helpful.  They have also provided a table describing some of the most common gender pronouns, and an explanation of their use:

Graphic by TSER

     Why ask about Pronouns?

To show respect for our clients and each other, we should be asking, not assuming, "Who are you?" To those of us who do not have the burden of explaining why we identify as we do, it may seem as if correct pronoun use is not a huge deal. However, for those who find themselves misgendered and with the need to explain who they are at a fundamental level day after day, the need to explain and educate others can go far beyond being annoying to exhausting and even trauma inducing.

At the MCLE program I attended, one of the panelists made a very simple point: what does it cost you to provide this level of respect to others? Essentially it costs you nothing. The small amount of time it takes to learn about and familiarize yourself with pronoun options is nothing compared to the positive impact it can have on someone who feels accepted and recognized, especially if that is not a common occurrence for that person.

Particularly for lawyers and mediators, the importance of having our clients feel heard is paramount to an effective client relationship. Below are links to a few articles discussing the effects of misgendering, and how asking about pronouns can affect a person’s mindset and health:

Health Line: What Does It Mean to Misgender Someone?

The Aragon Outlook: The Power of Pronouns: How misgendering can affect student health

The Undeniable Ruth: Which Pronouns do you Prefer?

     Next Steps

Hopefully at this point you agree about the importance of allowing everyone to self-identify. So, what can you do to help?

Ask the Question

When we know better, we can do better. What does that mean for our clients with respect to pronoun use and gender? It’s really simple: stop making assumptions and ask a question right up front. Lawyers and mediators should add a line to intake and scheduling forms so that clients can answer the pronoun question, without feeling the need to educate or explain how they identify.

Be thoughtful about the way you ask the question. While some people state that they “prefer” certain pronouns, others find the idea that it is a “preference” offensive because we never refer to cis-gender individuals as “preferring” their gender, it just is who they are. On an intake avoid asking what they prefer, and ask simply “What pronouns do you use?” or “My pronouns are:_________.”

In conversation, start with an introduction “I’m Justin Kelsey, my pronouns are he/him.” This invites the question possibly without even having to ask it by demonstrating first that you are open to the other person identifying their pronouns as well.This can be done when communicating electronically as well.  You can set a tone of open acceptance by proactively identifying yourself even if it is not something you have historically felt the need to do. Lawyers and Mediators should be including this information in their e-mail signatures. Below is a sample:

Peace 
Justin L. Kelsey, Esq.  
he/him

Collaborative Divorce  |  Mediation



  T:    508.655.5980

  E:    jkelsey@skylarklaw.com

  in  Linkedin  

   t:    @skylarklaw

  

You may also want to consider adding pronouns to your social media profiles. These are easy steps that demonstrate to our clients (and our colleagues) that we have a basic understanding of the need to be correctly identified through correct pronoun use in personal interactions.

Listen to the Answer

Once you know someone’s pronouns, use their pronouns without judgment and without questioning. If you have questions, remember that it’s not their job to educate you about the concept of gender identity.  Consider reviewing the resources we’ve provided above instead of asking questions of someone who may already be exhausted or traumatized from being misgendered during their lifetime (for more information watch this video on Thing Not to Say to a Non-Binary Person) This is especially true when you have not established a relationship that includes trust and understanding.

If and when you engage in a dialog with someone about gender, LISTEN first. If you feel like you want to ask questions, always ask yourself if your question could cause additional trauma and if it’s something you could educate yourself on later without placing the burden on your client.

We all make mistakes as well. When using pronouns that may be different than you’re used to it may be uncomfortable at first. Just remember how uncomfortable it must be for the person who is misgendered throughout their life, and if you make a mistake, simply apologize.

Finally, Get Political

It is important to think about the big picture here and to be supportive at a political level too. Ruth Carter, a non-binary lawyer, author, and speaker, kindly agreed to assist me in reviewing this article and has written a helpful piece about the need for non-binary gender recognition on government IDs.

Here in Massachusetts, there is a chance to vote on transgender rights on November 6th. The ballot Question #3 asks MA voters to essentially affirm a law already passed by the legislature that would prohibit discrimination in public accommodations based on gender identity, further described here.

If you are a MA resident, we encourage you to vote YES on Question #3, and to spread these educational resources about identity so others, especially those in privilege, can better understand the complicated nature of identity and how easy it is to show respect for another person’s identity simply by having an open and curious mind, which is the most important tool a lawyer and mediator has to offer.

UPDATE: Question 3 passed with almost 70% of the votes, a resounding affirmation that Massachusetts residents support transgender rights and protections and refuse to stand for discrimination based on gender identity.  While this is a positive sign, the law itself does not prevent people from being discriminated against.  In order to continue to do better, we must insist on enforcement of the law, seek out and share educational resources about gender identity, and continue to work together towards better understanding of each other.  The success of question 3 is a step in the right direction, now let's keep asking the right questions.

Thank you to Ruth Carter, Jennifer Hawthorne, and Rackham Karlsson for their assistance in editing and reviewing this article.

Monday, September 24, 2018

Wanted: Diverse Divorce Practitioners. Why Diversity is Good for All of Us

Guest Post from Valerie Qian*
Cultural competence and sensitivity to the needs of diverse clients are an essential part of being an effective and successful professional.
My father-in-law recently underwent surgery to remove a kidney stone. It happened at a big hospital in New York City which, I understand, has an excellent urology department. As a first-generation immigrant from Shanghai, my father-in-law speaks limited English. After the surgery, while he was still slightly groggy from the anesthesia, a surgical resident who spoke some Chinese told him, without an interpreter, that the surgery went well and that 90% of the stone had been removed. A week later, my husband found out from the surgeon who actually performed the surgery that the stone was still there in its entirety and had not been removed, and my father-in-law needed a second surgery. My father-in-law went from thinking that the stone had been mostly removed, and the surgery successful – to being told that the surgery had not resulted in removal of the stone at all, and that he needed another surgery.

This was in spite of our being convinced, after learning the full story, that my father-in-law’s surgeon was an excellent surgeon and had made the best medical decisions under the circumstances during the surgery.  So how did the lines of communication get so crossed? 

There is an unspoken and unreasonable tendency to assume that professional services – such as getting your kidney stone removed, or negotiating a divorce – are somehow divorced from real life. We assume that the professional only needs to be someone who knows how to do their job – and that their cultural background, their “bedside manner,” their manner of relating to me and communicating with me as a human being, is irrelevant or not as important. This is a grossly inaccurate assumption – as much in the operating theater, as in the legal field. Cultural competence and sensitivity to the needs of diverse clients are an essential part of being an effective and successful professional.
History, religion, attitudes towards gender roles, norms about the purpose and role of the family, and the importance of individual happiness versus the collective good of a society, are all many-colored threads that run through a marriage 
– and tangle, when a marriage is broken up.
This is even more the case in the context of family law, where cultural competence may be crucial to a divorce practitioner’s ability to fully understand and advise a divorcing couple, or one of the parties to a divorce. No one can deny that every culture approaches marriage and family in very different ways. Even just looking at the wedding ceremony itself, this is abundantly clear. History, religion, attitudes towards men’s and women’s roles, norms about the purpose and role of the family, and the importance of individual happiness versus the collective good of a society, are all many-colored threads that run through a marriage – and tangle, when a marriage is broken up. Nobody is looking for divorce and nobody expects it to be pretty.

Especially when a couple seeking a divorce comes from a culture that holds marriage and family in high regard, it should be approached delicately. It’s a situation that calls for sensitivity, and cultural and ideological literacy.  This is why we need more diverse family law practitioners.

The importance of cultural understanding: Couples from diverse backgrounds need diverse family law mediators or attorneys, who may be better equipped to understand the cultural nuances operating between a divorcing couple if they share that cultural or ideological background. There may be unique stigmas faced by a divorcing couple from a specific cultural background: shame and ostracization; heightened incentives for privacy; and potentially many more players involved in the decision-making process than just the two parties.

Parties should not shortchange themselves nor discount the importance of having a mediator or attorney who understands the interplay of these many factors. Having just one culturally-sensitive collaborative attorney on a collaborative team for a divorcing couple could mean that the team as a whole – both attorneys, and the coach, and any other neutrals – approach a couple from a different cultural background with much more insight and sensitivity, too.

The importance of feeling understood:  We need diverse practitioners all the more in out-of-court processes such as collaborative law and mediation, where the parties to a dispute retain control of the decision-making process from beginning to end, and are not giving it up into the hands of a judge as they would in litigation. When so much elbow grease is required outside of the courtroom and from the parties themselves, a culturally-sensitive or literate mediator could mean the difference between settling a case and getting stuck at an impasse that exists because of some unspoken and ingrained cultural or ideological value that one or both of the parties subscribes to, but is unable to or does not ever think to share.  It could also mean the difference between a party feeling comfortable enough to trust and build rapport with the practitioner(s), an element that is key to effective dispute resolution.

Diversity strengthens the professions as a whole: Couples from all backgrounds can benefit from help from diverse family law practitioners. In out-of-court processes in particular, a diverse practitioner’s varied experiences and competency at adaptation, flexibility, and thinking outside the box (because they have been forced to, coming from a non-mainstream culture) can be invaluable to crafting out-of-the-box solutions to problems that might seem insurmountable when approached from a more traditional perspective.
In many ways our country has been taking a long, hard look at ourselves, and reevaluating whether it is really true that as a nation we hold certain truths to be self-evident – about race, race relations, cultural diversity, and the value and place of women in society, for example.
The family law bar needs diverse practitioners, so it can grow within itself and broaden its perspectives and approaches to diverse populations, and also sharpen its ability for out-of-the-box thinking. The family law bar should foster diverse and culturally-sensitive practitioners if it really desires to provide access to the law to a diverse population.

In many ways our country has been taking a long, hard look at ourselves, and reevaluating whether it is really true that as a nation we hold certain truths to be self-evident – about race, race relations, cultural diversity, and the value and place of women in society, for example. Our choices reflect and test who we really are. We should walk the talk – and show by who we foster and mentor among our colleagues, and by who we seek to hire to help us with our problems – that we really believe diversity matters. For my Shanghainese father-in-law who deserves to know what happened in his two-hour surgery – and for all of us.


*Valerie Qian has been an Associate at Skylark Law & Mediation, PC since February 2013.  Valerie was born in Wisconsin, grew up in Hong Kong, and has also lived in Shanghai, the United Kingdom, and Boston. She speaks semi-unembarrassing Spanish, Mandarin, and Cantonese. Valerie's practice focuses on divorce mediation, collaborative divorce, paternity, and modification, and she also represents youth, incarcerated and in the community, in the Middlesex Juvenile Court and the Massachusetts Department of Youth Services.

Saturday, September 8, 2018

Divorce Mediation Training Associates Prepares to Change Leadership

Divorce Mediation Training Associates has just announced that long-time trainers John Fiske and Diane Neumann will be stepping down and, starting in 2019, Justin Kelsey (of Skylark Law & Mediation, PC) and Ellen Waldorf (of eWaldorf Mediation) will be the new training team.

Justin has taught with John at the MCLE Family Mediation Workshop for many years, and Ellen has been a part of past DMTA trainings.  Both Ellen and Justin are excited at this opportunity to continue the excellent legacy of DMTA, and carry these trainings into the future.

Justin and Ellen will be participating in Diane and John's last DMTA training next month, starting on October 9.  Click here for more information or to register.

To read the full press release from DMTA visit here.

Tuesday, August 14, 2018

What Does it Mean to Call Yourself a Collaborative Lawyer?

It's not unusual to hear a lawyer describe themselves as collaborative.  I've also heard "I haven't taken the Collaborative Law training, but I certainly consider myself collaborative!"

But what do they mean by that?  Does it mean they offer collaborative law as an option to their clients, or just that they're willing to start a case in out-of-court negotiations and see where it leads?  Does it mean that they understand the collaborative law principles, or simply that they try to be civil with opposing counsel?

Civility and Collaboration are not the same thing.  In fact, many lawyers think of true "collaboration" as a dirty word.  I imagine them picturing the World War II signs labeling French civilians as "collaborators" and shuddering at the thought.  The problem with this mentality, especially in family law, is it means that you are thinking of the opposing party (and their counsel) as the enemy.  You might be civil to an enemy, but begrudgingly at best.  You might cooperate with an enemy for mutual self-interest, but you'll never trust them.  You'll never truly want to work together with an enemy.

Collaborative Law asks us to take a different approach.

The opposing party in a conflict is not my enemy.  They may have some competing interests, but in all likelihood they have many of the same goals and interests.  If you ask most parties in a conflict, they would both agree that they want to minimize lawyer fees, that they want to minimize the amount of time they spend in conflict, and that they want to have control over the outcome.  In a family case, they will almost always agree that the best interest of the children is a priority and that financial stability is also an important goal.

When we recognize that the joint goals often significantly outnumber and outweigh the areas of disagreement, we acknowledge the value of working together towards a mutually agreeable resolution of the conflict.  We see the value in collaboration, because we are not enemies just because we have a disagreement.  Even if that disagreement is painful and difficult, when we acknowledge the human dignity of the other side of a conflict, we invite a mutual respect and we make room for creativity and cooperation in joint problem solving.

Being a Collaborative lawyer is not just about civility.  That should be a given anyway.  Being a Collaborative lawyer is about shifting from a mindset where the other party or counsel is the problem to overcome, to a mindset where we define the disagreement as a joint problem and try to solve it together.

So if you want to call yourself collaborative, take the time to learn what it's really about.  Challenge yourself to set aside your misconceptions about problem solving, and offer to your clients an opportunity to find peaceful resolution instead of waging war and creating an enemy.

If I've piqued your interest or curiosity, there is an upcoming training in Salem, Massachusetts on September 20 and 21.  Learn more or register here.


Bringing Home the Bacon, and Frying It: The Appeals Court Defines Economic Partnership

Guest Post from Valerie Qian*

Does it make a difference for my legal rights if my spouse and I lived together before we got married?

The lawyerly answer, which I know is one most people can’t stand, is “it depends.” The Bortolotti v. Bortolotti case, a 1:28 unpublished decision that came down from the Appeals Court in April 2018, sheds some more light on this situation. The relevant statute, M.G.L. c. 208 §48, provides that the legal length of a marriage may be extended by periods of cohabitation if the parties had an “economic partnership” during these periods of cohabitation. The Bortolotti decision clarifies that “economic partnership” exists both in situations where both parties contribute income to the household, and in situations where one party may be economically dependent on the other. The decision further notes that when a judge exercises her discretion to exclude premarital assets from the marital estate, she should use a valuation of those assets at the time of the marriage.

The Appeals Court’s approach to the definition of “economic partnership” is broader than the lower court’s, and rightly takes a more broadminded approach to what this should mean. The commonsense definition of “partnership” suggests that both parties to a partnership contribute to it. But what qualifies as a “contribution” in a marriage/cohabitation partnership? The lower court seemed to only consider economic contributions in the form of one partner’s contributions of his income to the parties’ expenses during their cohabitation. Because the other partner did not contribute financially during their cohabitation, and appeared to be economically dependent on her male partner, the lower court did not believe there was a partnership.

The Appeals Court’s broader definition of “economic partnership” suggests that contribution to an economic marital partnership may involve more than simply depositing your biweekly paycheck into the joint bank account. While one party may be economically dependent on the other, she may still be considered a “partner” in an “economic partnership” that extends the legal length of the marriage for alimony purposes. The Appeals Court keeps its rationale for this broader definition of “economic partnership” grounded in rules of statutory interpretation and in case law, but the wider implications of this definition are clear and, I think, only right. Here in April 2018, we should be beyond the point where we believe that a stay-at-home wife (or husband) who is not bringing home the bacon is not contributing financially to the economic partnership of a marriage simply because she (or he) is only frying it. 

*Valerie Qian has been an Associate at Skylark Law & Mediation, PC since February 2013.  Valerie's practice includes family law & divorce representation, collaborative law and mediation, and juvenile representation.

Tuesday, July 24, 2018

Will the Alimony Tax Change Pressure Couples to Finalize their Divorce in 2018?

As we have previously covered here, The Tax Cuts & Jobs Act of 2017 Includes a Divorce “Penalty” for divorces that take place after December 31, 2018 if they involve alimony.  Prior to this act, and up until December 31, 2018, alimony was tax deductible to the payor and taxable income to the recipient, which allowed for a shifting of taxable income to a lower tax bracket.  If an agreement is entered prior to the end of 2018, and this benefit is preserved, then it continues into future years, even if the amount is later modified.  This has led many couples, already in the divorce process, to consider whether they want to work on finalizing their case prior to the end of 2018 to preserve this option.

Because some states, like Massachusetts, have waiting periods for finalizing a divorce, this law change raised a question:

Does the deadline of December 31, 2018 apply to the divorce being finalized, or just having a written agreement completed?

The answer to this question in Massachusetts, which has a 90-120 day waiting period for the finalization of a divorce after the Judgment of Divorce Nisi, could mean the difference between having to have an agreement done in August rather than December.  For more information about the timing of the divorce process in Massachusetts read our post: How to be Divorced by the End of the Year.

According to a recent post from local CPA firm, Gosule, Butkus & Jesson, LLP,
"The key for parties getting divorced in 2018 who want alimony to be deductible to the payer and taxable to the recipient is to have a written, signed, alimony agreement in place by December 31, 2018."
They note that the couple does not have to actually be legally separated or divorced for the alimony to be deductible as long as there is a "written separation agreement" with clear statements for support that otherwise meet the requirements for deductible alimony.  To read their entire rationale for this conclusion, complete with tax court citations, read their full article here: What Constitutes an Alimony Agreement?

Monday, July 23, 2018

Appeals Court Confirms Again, Verbal Agreements are not Good Enough to Modify Support

Guest Post from Julie Tolek*

In the recent case of Smith v. Smith (17-P-765), the Appeals court upheld a finding of not guilty of contempt of disobeying a court order to pay alimony, but vacated and remanded as to the retroactive modification of alimony made by the trial Judge due to the parties' verbal agreements, stating that retroactive modification of alimony requires findings “reflecting [the judge’s] consideration of all the factors mandated by” the statute. quoting Pierce v. Pierce, 455 Mass. 286 (2009).

After a divorce which included an order for the husband to pay alimony, the parties agreed among themselves that the husband would pay less than the amount of alimony in their separation agreement. Relying on this agreement, the husband contributed financially to various expenses for his emancipated children, including payment toward a wedding, down payments for two of his children’s houses, and payment toward liabilities. After receiving a letter from the Wife’s attorney, the husband began paying the originally agreed to amount. Subsequently, the wife filed a complaint for contempt for failure to pay alimony to collect the arrears.

The trial court found the husband not guilty of civil contempt as to the non-payment of alimony because although it did meet one requirement of contempt of “clear and unequivocal command” (not paying the amount of alimony required by the agreement), it did not meet the second requirement that the plaintiff show “clear and undoubted disobedience” by the husband, since he did make the reduced payments that he and his wife had agreed upon outside of the separation agreement. The Appeals court upheld this finding.

The trial court also retroactively (but not prospectively) modified alimony to bring it in line with the husband’s previous payments. The trial court based the modification on the same findings that led to the court to find the husband not guilty of contempt, however the Appeals court states that the two issues are separate and that “a party may not be in contempt, yet still owe alimony under the existing court order.” In reversing and remanding as to the modification, the Appeals court continues that although the retroactive modification is in the judge’s discretion, the judge must make findings “reflecting [the judge’s] consideration of all the factors mandated by G.L.c. 208, s. 34.” Pierce v. Pierce, 455 Mass. 286 (2009). Even prior to Pierce, case law has demonstrated that an alimony order can only be modified upon showing a material change in circumstances which involves looking at the statute at that time, the s. 34 factors, when evaluating the circumstances. Since the judge in this case did did not make findings addressing the current statute factors, the Appeals court reversed and remanded for an evaluation of the appropriate factors as well as if there has been a material change in circumstances since the divorce in relation to those factors.

As to the husband’s defenses of laches and estoppel, the Appeals court found, in accordance with case law, that laches is not a defense in a claim such as this, and that in any case where the elements of estoppel are analyzed, it should be done so relative to the required factors.

*Julie Tolek is an Associate at Skylark Law & Mediation, PC and runs her own practice, Think Pink Law.  Julie's practice includes family law & divorce representation, prenuptial agreements, mediation, firearms licensing & NFA trusts, estate planning & probate, and adoptions.

Friday, July 20, 2018

Accessibility with an Injury: The Problem with Sounding like your Mother

We recently published a post regarding the importance of making websites more accessible to all potential users where we provided some tips on improving accessibility.  Accessibility is not just an issue for those with long-term disabilities.  Access is often limited for individuals on a temporary basis due to an injury or surgery.  We asked Julie Tolek to write this follow-up post about her recent surgery and her experience with temporary Accessibility challenges.

Accessibility with an Injury: The Problem with Sounding like your Mother

a Guest Post from Julie Tolek*

Note: I use an iPhone, so this article references iPhone specific settings and apps that may or may not (but should) be available on other devices.

Earlier this year, I was scheduled to have shoulder surgery in March. I had been in pain and unable to use my arm properly for months, and when conservative treatments such as physical therapy and cortisone shots did nothing for the pain, I asked for an MRI. I knew in my heart of hearts that I had real damage to my shoulder but it wasn’t until the MRI confirmed that I had torn my labrum that I was able to set up the surgery.

One of the first things I asked my doctor was how soon will I be able to type, since getting back to work as soon as possible was important. I would be able to move my fingers just fine after the nerve block wore off, but I would not be able to move my arm for a very long time. With physical therapy, I would eventually get my range of motion back over a period of 6-9 months. But first I would have to wear a sling for 8 weeks.

Yikes!

As I started to think about the reality of how this situational temporary disability would affect my work and daily life, my first thought was that of gratitude - that my injury was repairable and that I would have use of my fingers, hand, and arm, all in due time. My next thought was how I was going to get through that time and still be able to use my arm as I could.

My top 3 observations about and experiences with accessibility while my arm was in a sling:

1. Phone numbers on non mobile-responsive websites: 
I am a website and marketing snob as it is, so visiting websites on my mobile device (I use an iPhone) only to find out that the site is not mobile responsive really aggravates me, especially because creating a mobile responsive site can usually be done very easily by clicking a checkbox or changing a setting on the back end. Specifically on mobile responsive sites, if there is a phone number on the site, usually you can tap it and your phone will ask if you want to call the number. Non mobile responsive sites do not have the phone number linked so you can just tap it, but instead force you to copy and paste the phone number into your actual phone app. I have really small hands, so it is often hard for me to use my iPhone one handed to do anything, much less copy and paste. With one arm in a sling, it becomes even more difficult, and annoying.
2. Getting to know Siri when you sound like your mom:
For the first time, I started to regularly use speech-to-text services (such as Siri) to dictate my writing. I had experimented with using Siri before and let me just say, we were not friends. Half the time she would get things right (setting alarms, asking the time, etc.), but when she didn’t or when she asked for clarification, she never understood what I was saying. By the time I used manual input to correct her or do what I was trying to do, it would have taken less time if I had fumbled my way through one handed to begin with. I decided that it was time to really try my best to use Siri as much as possible so we could become more proficient with communicating with each other. Text messages were hands down what I dictated the most, followed by emails. I am paranoid about sending the wrong email to the wrong person, so if I was starting an email from scratch, I would dictate it into notes first and send it manually later. This also gave me a chance to proofread and edit before sending. I would also dictate replies and save the drafts to send later.
Voice commands involving reading messages or creating calendar events using Siri proved to be not as useful. Often times, if I wanted Siri to read a new message for example, I had to unlock my phone with my fingers anyway.
Siri actually started to confuse my mom’s voice with mine! My mom stayed with me during the first part of my recovery. She also uses an iPhone and already used Siri much more than I did. I knew my mom and I sounded alike but when she would say, “Hey Siri!” To activate Siri, and both of our phones would reply, it was kind of weird! Her Siri would recognize my voice as well. What I found the most amusing was if one of us activated Siri, but the other's phone responded!
So I guess Siri is slightly less reliable when you and your mom sound alike.
3. Text to speech:
One of the most overlooked features on the iPhone is the ability to have it read things to you. Whether it is a webpage, a pdf document, or an email, there is another option other than asking Siri to read you something. In Settings > General > Accessibility, there are numerous settings to make the functions and use of the iPhone (or iPad) more accessible to those with disabilities. One of those settings allows Siri to read you the contents of the page by swiping three fingers down from the top of the screen. So if you cannot speak the command but you can see the screen, you can have Siri read to you manually. This setting is actually listed under Vision, in the Speech subcategory.
Once the setting is on and you use three fingers to swipe down from the top of the screen, Siri will begin reading automatically. You can adjust the speed from the little menu that pops up or set a default speed in the Speech settings. Although this method means I have to use my fingers, it is yet another (and sometimes more reliable) way to get Siri to read to me exactly what I want. If there is no readable content on the page, Siri will say so.
I have used this in the car as well when I wanted to be productive and have Siri read legal cases to me. She reads right through website extras and the stuff that you probably would not consider part of the main document, but generally you can follow her monologue.
Having limited use of my arm during my shoulder surgery recovery really got me to think about how these different ways of accessing information really make a difference for people who have disabilities, whether temporary or life long. It’s imperative that we remember, as humans, to be considerate of other people’s methods for seeing and receiving information, and communication, and that we strive to provide different ways to access and harness the same information.


*Julie Tolek is an Associate at Skylark Law & Mediation, PC and runs her own practice, Think Pink Law.  Julie's practice includes family law & divorce representation, prenuptial agreements, mediation, firearms licensing & NFA trusts, estate planning & probate, and adoptions.

Wednesday, July 18, 2018

Reducing the Barriers to Legal and Mediation Services: Making our Website Accessible to All

Guest post by Kristyn Stoia:

Unless you’ve ever faced barriers while using a website, Web Accessibility is probably something that you’ve likely never heard of. However, there are numerous hurdles those with various impairments face when using the web, especially since the vast majority of sites aren’t designed with these needs in mind.

A website is regarded to be Accessible when measures have been taken to make certain that obstacles are removed to give equal access to the user. It also means that regardless of someone's physical, mental, or cognitive condition that they are able to freely use a website to obtain information and services.

Userway App Screenshot from Skylark WebsiteHere at Skylark Law & Mediation, PC, we took numerous steps to ensure Accessibility for each and every one of our users. We strived to adhere to the WCAG Outlines for Accessibility which means creating a site that was perceivable, operable, understandable, and robust. In doing this, we took some specific measures:

We began by adding the Userway Plugin, which can be found in the upper right-hand corner of the website and this blog. This simple widget can really pack a punch in its capabilities and benefits for our users. It allows for keyboard navigation, cursor enlargement, color contrast, text enlargement, desaturation, link highlighting, legible fonts, as well as the ability to have the page read aloud to you. All these features are huge game changers in terms of the user experience. Best of all, it will remember the settings you chose, so each time you visit the Skylark website it will be ready to go.

On more of the tech side of the equation, there were many alterations that were done deep within the site. We added alternative text captions for each and every one of our images so that they could be read by screen readers,title attributes were removed in order to prevent a reductant experience from auditory software that would read out loud more content on the site than was necessary, and Skiplinks were added to allow for further navigation on the site. These are just a few of the adjustments we made in the pursuit of creating a far more accessible website.

Implementing Accessibility into our website was one simple way to be certain that all users on the Skylark website have equal access to the same user experience. Achieving a more Accessible site benefits all users regardless of their disabilities. Not only does the site now accommodate various disabilities but it also incorporates a fluid user interface for visitors. Legal services and information should be attainable by whoever seeks them, so by improving our site; we are fulfilling our role in leveling the playing field for all of our potential clients. All in all, accessibility is a huge issue that needs to be considered in order to welcome everyone to use the services or experience the content you're putting on the web.

For more information read the Accessibility Statement on our site.


Wednesday, May 23, 2018

How to be Divorced by the End of the Year

How long it takes to get divorced can be divided into three stages: 

Stage 1: How long does it take you to start your divorce process?  This is completely up to you and your spouse.

Stage 2: How long does your divorce process take?  This can depend significantly on the type of process you choose.  Mediation is typically faster than going to court, for example. 

Stage 3: How long does it take for a divorce to become final once filed with the court?  In Massachusetts, once a divorce is finalized by approval of an agreement by a Judge or by a judgment after trial, there is still a waiting period before the divorce is final.  This is called the Nisi period.  In a Joint Petition for Divorce this waiting period is 120 days.  In a Complaint for Divorce this is a 90 day waiting period (though it's also important to note that a Complaint cannot go to Judgment until at least six months after the date of service). 

Given this 120 waiting period if you're looking to figure out how long it takes to get divorced you have to count back from the date you want your divorce to be finalized.  That waiting period can be calculated back to August in order to be divorced by the end of the year if you are proceeding by (or hoping to proceed by) agreement.

Often times, clients are prepared for finalization but do not anticipate the inevitable waiting period. It is important to know the steps so that couples are aware of the time it takes and what will be expected of them.

Here are our steps we recommend taking at Skylark to assure a completed divorce by the end of the year:

Step One: Schedule a Mediation with us!

The full mediation process typically takes from 3-6 months from start to finish. We recommend jumping on that early on so that you are fully prepared for the steps ahead.  Schedule online here.  If you are in full agreement on all issues then you can skip to Step Two:

Step Two: Drafting the Court Documents

Upon completion of a mediation process, the agreement, joint petition and other court documents need to be drafted before you can file for divorce.  At Skylark we prepare these documents for our clients as part of the mediation process, or if you mediated elsewhere or started out with a full agreement then you just need it to be written into the legal format.  We can be hired to prepare these documents on a flat fee basis as outlined on our pricing page.  The preparation usually takes 2-4 weeks depending on how quickly our clients provide all the documentation and review the draft for accuracy.

Step Three: Book and Attend a Hearing

So now you are at the point where you are ready for Step Three and fully prepared to attend your hearing. This part of the process varies by county.  In some counties you can get a hearing immediately, and in others you may have to wait 30-60 days for a hearing date once your paperwork is filed.

Step Four: Divorce Finalization

While there is a 120 day waiting period, there is no further action required to finalize your divorce during that time period.  Your agreement may require additional steps be taken to complete your agreed upon division of assets (such as completion of a QDRO), but these steps will not change the final divorce date.

Calculating Backwards:

The 120 day waiting period is not always exactly 120 days as explained in this prior post: When does 30 + 90 not equal 120? In Divorce Court!

For 2018, the calculation would work like this:

December 31, 2018 - Divorced by: In order to be divorced on December 31 of 2018, you would need to have the Judgment of Divorce become final on that date.  A Judgment of Divorce Nisi in Massachusetts becomes final on the first business day 90 days after it issues.  Since December 31, 2018 is a Monday, the last date that divorces can be final in 2018 is Monday, December 31, 2018.  So we count back 90 days from December 31, 2018.

December 31, 2017 - Final Divorce Date: 90 days prior to December 31, 2018 is Tuesday, October 2, 2018.

October 2, 2018 - Nisi Date:The Judgment of Divorce Nisi date has to be a business day as well.  Since this is a Tuesday it can be the Nisi date.

August 31, 2018 - Last Hearing Date: In order to have a Judgement of Divorce Nisi issue on Tuesday, October 2, 2018, the Joint Petition must be approved 30 days prior to that date.  30 days prior to October 2, 2018 would be Sunday, September 2, 2018 which obviously wouldn't work for a hearing because the court is not open on Sunday.   Therefore, the latest day you can have a hearing on a Joint Petition in Massachusetts in 2018 and still be divorced by the end of the year would be Friday, August 31, 2018.

August 24, 2018 - Safe Hearing Date: It is usually a good idea to give yourself an extra week in case anything goes wrong at the hearing, so that brings us back to Friday, August 24, 2018.

June 22, 2018 - Safe Filing Date (depending on county): This part of the process varies by county.  In some counties you can get a hearing immediately, and in others you may have to wait 30-60 days for a hearing date once your paperwork is filed. Check with a professional on the likely timeline in your county.

May 22, 2018 - Hiring Date for Agreement drafting:  It is a good idea to give at least 2-4 weeks for drafting and revisions of the document, even once a full agreement is reached.

January 1, 2018 - Hiring Date to begin Mediation: Unless you've already begun a mediation and are moving along successfully, it is unlikely you will be able to complete all the necessary steps described above to complete a divorce in 2018.

If you have completed these steps on time, your divorce should be finalized by the end of the year.  If not, your divorce will not be finalized until 2019, which affects your tax filing status for 2018.

The process obviously varies depending on your needs as a client but it is part of our job to time manage and make sure we are on task. We feel it is beneficial though for you to know on your end the lengthiness of the process and your necessary steps!

Friday, May 18, 2018

Child Support Guidelines Update: Fixing the Double Counting of Health Care and Child Care Credits

Today, May 18, 2018, the court announced at the MCLE Family Law Conference that a new child support guidelines worksheet will be effective as of June 15, 2018. The new worksheet is available here.  While the base Guidelines themselves have not changed, the language will be updated to reflect the changes to the worksheet (the new guidelines are expected to be released on May 22, 2018).

The updates to the worksheet solves a few issues that arose from the use of the original worksheet.   There have been a lot of changes to support, both spousal and child support, in the last few months. While everyone is still picking over exactly what the implications of the new Tax Cuts and Jobs Act are for alimony, we wanted to take time to review the current situation under the 2017 Child Support Guidelines.  Divorcing parties and practitioners alike should be mindful of these issues, even though a new form has been issued, because any cases for which child support was set from September 15, 2017 to June 15, 2018 may now be modifiable.

The first issue involving the Table B was addressed in our previous post.  The next issue we will address is the additional credit provided in the 2017 guidelines for the health care and child care costs:

Health Insurance and Child Care Expenses:
Extra Credit in the 2017 Child Support Guidelines Update

On September 15, 2017, the Chief Justice of the Massachusetts Trial Court implemented new Child Support Guidelines which include numerous changes from the previous update in 2013.  One of these updates created an additional adjustment for the payment of child care and health care costs by either parent.  This additional adjustment fits squarely within some of the principles established by the 2017 Child Support Guidelines Task Force which call for “recognizing the monetary and/or in-kind contributions of both parents in addition to the child support order; and recognizing the importance, availability, and cost of health care coverage for the child.” Child Support Guidelines, Paula M. Carey, Chief Justice of the Trial Court, July 18, 2017 (eff. Sept. 15, 2017). 

Unfortunately, as with many one-size fits all adjustments, there are cases in which this adjustment results in a counter-intuitive result. 

The Old Adjustment for Child Care and Health Care Costs:

First, let’s clarify the impact of child care and health care costs on child support prior to the implementation of the 2017 guidelines.  Under the 2013 guidelines, there was a small credit provided to a parent who paid for child care or health care.  The 2013 worksheet included a deduction to gross income equal to the weekly cost of health care or child care expenses which reduced the available income used to calculate child support.  However, while the full cost was used to reduce available income, the impact to child support did not show the same dollar-for-dollar reduction because available income is only proportionally related to the final child support figure and therefore the reduction in income resulted in only a modest credit.

In practice, this meant that under the old guidelines a significant change in the out-of-pocket child care of health care costs might only result in a small or nominal change to the child support amount.  It also meant that a parent could have a child care or health care cost that used up a significant portion of their income, and which child support might not even fully cover. 

The changes made under the 2017 Guidelines are intended to correct these issues by adding a new adjustment.  But before we get to that, in order to fully understand the impact health care and child care costs have on the final child support order, it’s important to clarify that the old credit is still there too.  The 2017 child support guidelines still direct the parties to reduce their available income in the income section of the current worksheet by the child care and health care costs. 

The 2017 Adjustment for Child Care and Health Care Costs:

In addition to the remaining available income adjustment, the 2017 Guidelines require a second adjustment to be made to the presumptive child support order to account for the significant impact these costs can have on a family.  Specifically, Section II.E. Child Care Costs and Section II.H. Health Care Coverage contain the following language respectively:
"The guidelines worksheet makes an adjustment so that the parents share the burden of the cost proportionately. The adjustment involves a two-step calculation. First, a parent who is paying the child care deducts the out-of-pocket cost from his or her gross income. Second, the parties share the total child care costs for both parents in proportion to their income available for support. The combined adjustment for child care and health care costs is capped at fifteen percent of the child support order.” Id.
and the mirroring section in Section II.H.
“The guidelines worksheet makes an adjustment so that the parents share the burden of the cost proportionately. The adjustment involves a two-step calculation. First, a parent who is paying the health care deducts the out-of-pocket cost from his or her gross income. Second, the parties share the total health care costs for both parents in proportion to their income available for support. The combined adjustment for child care and health care costs is capped at fifteen percent of the child support order.” Id.
The proportional sharing of these costs relative to the parties’ available income helps to apportion these costs between the parents.  However, the Task Force maintained a 15% cap on this adjustment to avoid these expenses overtaking or eliminating the support order.  This means that whoever pays for child care or health care costs will still not get a dollar-for-dollar credit in most cases, but the adjustment will typically result in a more significant change than under the 2013 guidelines.

This cap means that in may cases, if the child support recipient cares for the children 2/3 of the time or more and pays for health insurance or child care, their household is not going to have the same available resources as the payor’s household even if they have the same gross income.  This is because they are not fully reimbursed for a share of the child care or health care costs, unless the incomes are high, because the cap will limit the proportional sharing.

The Task Force clearly made an effort to balance the impact of this additional adjustment while not creating an adjustment that was too significant.  In this effort to apply one formula, and one cap, to all adjustments there are two issues that arise which require, in some cases, deviation from these guidelines and the current worksheet in order to reach common-sense results. 

Issue # 1: Ambiguity in Applying the Health and Child Care Adjustment in Equal Parenting Cases

One of the issues created by the new adjustment arises in cases where the parents are also adjusting the child support in accordance with Section II.D. Parenting Time, which states in pertinent part:
“Where two parents expect to or do share equally, or approximately equally, the financial responsibility and parenting time for the children, the child support order shall be determined by calculating the guidelines worksheet twice, first with one parent as the recipient, and second with the other parent as the recipient. The difference in the calculations shall be paid to the parent with the lower weekly support amount.” Id.
Calculating the guidelines worksheet twice, as directed, means running the Section 4 adjustment twice, which results in a double-counting of the adjustment under the worksheet available from September 15, 2017 to June 15, 2018. 

This result is not consistent with the principles described by the Task Force in the preamble, and just isn’t a common-sense result.  It was possible to manually calculate this 15% cap, but the current worksheet doesn’t provide this calculation and therefore violates the 15% cap language in the Child Support Guidelines when applying the requirements of the Parenting Time section. 

Under the new worksheet taking effect June 15, 2018, the split and shared parenting time calculations are built into the worksheet to avoid this double-counting.  We expect the language of the guidelines will also be updated to note that running two guidelines sheets will no longer be necessary.  Of course, this may raise modification issues for any cases where guidelines were run between September 15, 2017 and June 15, 2018 unless this issue was adjusted for manually.

Issue # 2: The Double Impact of an Agreement to Share Health Care and Child Care Costs

Apart from the cross-guidelines double-counting issue of the original 2017 worksheet, there is a different issue created when parties agree to share the child care or health care costs directly or through reimbursement. 

Taking income disparity into account, many couples reach an agreement to split health care or child care costs before calculating child support.  These services benefit the entire family and it is reasonable for parents to share costs that benefit them both in most circumstances.  If parties agree to split these costs directly, it isn’t clear from the guidelines or the worksheet how the parties should report this split on the current worksheet.

When the parties are agreeing to split the expenses outside the child support calculation the only way to avoid double-counting is to exclude the child care and health care costs from the worksheet altogether.  This has the negative effect of losing the first adjustment to available income as well (which happens in the income section of the worksheet), but that impact is much smaller than the impact of double-counting by splitting the amounts and then crediting again in the calculation. 

Conclusion

Thoughtful practitioners can approach these issues with common sense solutions when the adjustment is in violation of the cap, or results in a double-counting.   These shouldn’t be considered deviations from the guidelines, but rather deviations from the worksheet when the formula is inconsistent with the principles of the guidelines.  Unfortunately for many, the worksheet is the only part of the guidelines they may read, and many parties and attorneys will surely continue to lament the inconsistencies and “fairness” of the form.  It is an impossible task to create a one-size fits all formula that considers all the unique circumstances of every family, but at least the new form makes an effort to be more consistent with the listed principles.

Recognizing the imperfections in such a formula can be an exercise in criticism, or an opportunity to see the importance of thoughtful conflict resolution in every case.  I encourage practitioners, parties, and court personnel to look past the face-value numbers in every case to help families determine how the individual needs and costs of their family can be fairly divided with a long term and sustainable solution.  The presumption of a guideline is useful to force the hand of parties who cannot reach reasonable settlement on their own, but it shouldn’t be used to hamstring those who can. 



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