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.


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. 


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. 

Child Support Guidelines Update: Fixing the Table B Problem

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).

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 involves the original worksheet Table B, multiple children calculation. This issue was first shared with us by Professor Benjamin Bailey of the Department of Communication at UMass-Amherst, and his wife Attorney Julia Rueschemeyer.

The guidelines typically assume that a parent should pay more support the more children he/she has, however the original 2017 Guidelines worksheet did not do this in all situations. When parents have a mix of children under and over age 18, the Guidelines lead to some strange and counter-intuitive results, where having fewer children could result in your paying more support. The problem is with Table B of the Child Support Guidelines Worksheet:

As you can see, in Row 1 the numbers are increasing, so that a parent with two children over 18 will pay more support than a parent with only one child over 18. This makes sense, if the intention is that more support should be paid for more children. But the numbers do not increase consistently across the rows for the rest of Table B. For example, in Row 3, a parent with two children under 18 and two children over will pay less support than a parent who earns the same income with two children under 18 and three children over 18. In this and in a number of other situations, Table B results in what seem to be inconsistent results.

The Task Force originally responded to this alleged error in Lawyers Weekly by indicating that it recognizes that Table B produces seemingly inconsistent results in some situations, but that this was its intention for various other reasons.  Professor Benjamin Bailey proposed an alternate table that should be used instead to avoid inconsistent and counter-intuitive results, and to correctly encapsulate the intentions proposed by the Task Force.

Now that the Probate Court has issued corrections to the Child Support Guidelines the Table B issue is now resolved by having two separate calculations. These are listed in Table B and Table C in the new worksheet, separating the increase for multiple children and the decrease for any child over 18:

This resolves the inconsistency created by the original Table B, but raises three additional issues tied to the fact that this approach significantly reduces the impact of the 25% discount.

Issue 1:  Because this approach reduces the impact of the 25% discount, anyone who obtained a child support order between September 15, 2017 and June 15, 2018 may have a lower child support amount in place than the new worksheet will produce.  The difference may be small, but could lead to a need for modifications to match the new worksheet.

Issue 2:  Any parent who has a child over 18 that is also in college may want to consider whether a deviation from the worksheet amount is appropriate to take into account contributions to college expenses.  The guidelines still provide for this to be taken into account, and that issue may become more important since the impact of the discount has been lowered by this new worksheet.

Issue 3:  Finally, the Task Force may have originally intended this discount to have a bigger impact.  If that's the case, then when the task for reconvenes (likely in 2021), this could lead to a greater discount in the next Child Support revisions.

Thursday, May 17, 2018

Improving Negotiations using Collaborative Values: A Checklist of Tools

Improving Negotiations using Collaborative Values: A Checklist of Tools

by Beth Aarons, JD, MSW, Jody Comins, MSW, and Justin Kelsey, JD

On April 27, 2018, we presented to the Massachusetts Collaborative Law Council’s annual forum at a workshop entitled: Using Collaborative Values to Shift Parties from Litigation to Cooperation. The theme of this workshop was to take collaborative values and discuss how we can use these tools in all of our cases: negotiated, litigated, or mediated.

This is not a unique idea. David Hoffman has spoken and written about “cooperative negotiation” and Lainey Feingold has written and practiced “structured negotiation,” both of which share many overlapping tools that are used in the official Collaborative Law Process, with slight exceptions. In fact, we would argue that these negotiation processes have more in common with Collaborative Law than they do with litigation or more traditional attorney negotiation.

This leads us to the question that we brainstormed with our audience:

What are the Values used in a Collaborative case?

The list below is what we came up with together, and which we believe can be used in any case where both sides agree to commit themselves to these values. Using even one of these tools can improve the negotiation process by reducing conflict and finding solutions more efficiently.

The Collaborative Value Checklist:

  • Non-Adversarial
  • Interest-Based Negotiation
  • Identifying Goals
  • Seeking Solutions that are Mutually Advantageous
  • Active Client Participation in Joint Problem Solving
  • Hiring Neutral Experts
  • Transparency of Neutrals
  • Transparency of Information: Sharing Relevant Information
  • Structured Decision-Making Process
  • Disqualification Clause: Focused Representation as Settlement Counsel Only

In the Collaborative Law community, we often discuss the difference between a big “C” Collaborative case and a small “c” collaborative case:

  • A big “C” Collaborative case is used as shorthand to describe a case where all of these values are agreed to in a process agreement at the beginning of the case,
  • A small “c” collaborative case describes a case where we agree generally to work together towards settlement outside of court, but often don’t define exactly what “collaborate” means.

The problem with this shorthand is it encourages us to think of cases that aren’t committed to all of these values as similar, but not in a way that is clearly defined, enforceable, or universally understood.

Instead of relying on vague assurances, we encourage you to be specific when agreeing to a small “c” collaborative process. Have a conversation to determine which of these values you are committing to, and why. Use this checklist if it helps. It is important to recognize that each of these values brings something helpful to a case.

You may also want to consider bringing a collaboratively trained coach into each case to help facilitate this conversation. As professionals trained in particular skill sets, we may not have all the knowledge necessary to facilitate every conversation effectively or to work with our clients on all of their communication or financial issues. Collaborating with neutral professionals and being thoughtful about each of these values is in the best interest of our clients.

This methodical approach to defining the parameters of every case will lead to better informed clients, better settlement processes, and greater collaboration. If we try, we can make every case a collaborative one.

Wednesday, May 16, 2018

Avoid Delays in Retirement Division with this QDRO & DRO Checklist

This is a guest post from Justin L. Kelsey's consulting business, Gray Jay Endeavors LLC.  Gray Jay provides QDRO and DRO preparation, and education and consulting services relating to retirement division in divorce.  Gray Jay has been working on resources to assist attorneys, mediators, and parties in this process, such as the following checklist:

Download the Retirement Division Checklist

Retirement Division Basics:

In order to divide retirement as a part of a divorce, there is a one-time exception to the normal tax implications for withdrawals from retirement.  This exception allows a non-taxable transfer to a spouse's or ex-spouse's retirement account.  This can include the division of pensions, 401ks, IRAs and other types of retirement.  The document required to complete this transfer is usually called a Qualified Domestic Relations Order (“QDRO”) or Domestic Relations Order (“DRO”) depending on the type of retirement plan.

Most attorneys and mediators recommend hiring an expert to prepare the QDRO or DRO to ensure that it is prepared properly.  Gray Jay Endeavors LLC offers flat fee preparation of QDROs and DROs, and also offers hourly consulting services to ensure that divorce agreements contain the necessary language for the proper division of a retirement account.

Proper Preparation to Avoid Delays:

Incomplete divorce agreement drafting is the primary reason for a delay in completing a QDRO preparation and implementing the transfer of funds.   Too often divorce agreements contain only partial information needed to divide a retirement account.  When the information is incomplete in the agreement, the QDRO preparer can either make assumptions about the intent of the parties, or can ask the parties or professionals to clarify.  If the QDRO preparer doesn't ask these questions and just makes assumptions, then they could potentially be deciding significant financial decisions for the parties without their knowledge.  We strongly recommend working with QDRO preparers who ask the right questions, and don't make assumptions.

Unfortunately, the right questions can sometimes lead to disagreements over the details of the division.  One example of this type of disagreement arises when an agreement gives a date of valuation for the account, but doesn't indicate whether market changes (gains and losses) from the date of valuation are to be shared or not.  The QDRO takes time to prepare and implement so the market changes can be significant.  While most parties intend to share in the gains and losses, we never assume that is the case.  If this wasn't addressed in the agreement, we ask, and if the parties disagree, then the time it takes to reach agreement or obtain a new court order can cause a long delay.

In order to avoid these types of delays we recommend including all the necessary details in the divorce agreement.  To assist parties and professionals in knowing what those details are for each type of typical retirement plan, we have created a Retirement Division Checklist.  The checklist helps ensure that all of the necessary issues are addressed prior to finalizing your agreement.  If you are unclear about any of the required information and where to obtain it, we recommend contacting a QDRO preparer before finalizing the Agreement.  Many, like Gray Jay, will also assist in drafting Agreement provisions related to retirement.

Guest Post from Gray Jay Endeavors, LLC

Monday, April 30, 2018

What is a "Reasonable Period of Time" for Alimony to Continue, when the Law Changes?

Alimony cases come with their complications, and the Alimony Reform Act raised may questions for people who already had alimony orders prior to 2012. As with any other element of domestic law, it truly runs on a case by case basis. To give you an idea, we will dive into two alimony cases that resulted in significant decisions for the parties involved.

But before you head in full force, why don’t we take a moment to go over The Alimony Reform Act of 2011; it’s important to the story trust me. Though the act did not alter the definition of alimony, it did make adjustments to specific aspects such as the durational limits. In the act, it was decided that if a marriage lasted less than 20 years, there may be an option to terminate payments at a certain point.

Now, let’s give some background on the couples shall we? Our first case, featuring Joanne M. Popp and Robert L. Popp, centers around a change in alimony payment due to cut wages. A huge factor in this case is the duration of their second marriage to one another. You heard it right, they were married and divorced twice from one another. Our second case, is about the Arsdales. William Van Arsdale and Susan Van Arsdale were married for less than 20 years. During that time, they had two children. So here, the potential for child support comes into the picture as well.

We will start with Joanne M. Popp and Robert L. Popp, our twice married couple. Joanne and Robert married in 1988 and divorced in 1994. They rekindled their marriage in 1996 and later divorced in 2011. Robert was ordered by the judge to pay Joanne alimony of $12,000 a month.  In 2014, Robert reopened the case and requested that the alimony be modified, as his income had significantly dropped. He was awarded this claim and the judge, using the Alimony Reform Act as reference, determined that his alimony obligation would cease in 2020.

Robert was satisfied in the decision but Joanne claimed the judge had abused her discretion and did not consider all the necessary factors when using the act’s durational limits. Joanne believed that the judge failed to take into account her “ability to maintain marital lifestyle and lost economic opportunity as a result of the marriage”.  The SJC disagreed with Joanne, upholding the trial judge's decision based on the factors listed in the judgment.

Joanne also argued that the retroactive application of the durational limits was unconstitutional, but the SJC had already addressed the constitutionality issue in the Arsdale case. So we will leave Joanne Popp and Robert Popp for a moment, shifting over to the Arsdales.

Originally, William was set to pay Susan $3, 333.33 a month until Susan either got remarried or died. In 2005, William came back to court and submitted a complaint of modification to his alimony payments. It was later agreed upon that he would stop paying child support and rather increase his alimony to $7,571.26 a month.

Ten years later, William came back for more, filing a complaint for an additional modification to his agreement. This time he wanted a termination under the durational limits outlined in the Alimony Reform Act of 2011. This occurred in the wake of his retiring.  Susan filed a counterclaim stating that William was obligated to pay her alimony and continue to pay her life insurance.

The judge sided with William, stating that Susan did not show enough evidence that justified going against the limits outlined in the act. The judge also stated that Susan should not have expected infinite payments of alimony.

Susan appealed stating the applied durational limits were “unconstitutionally retroactive”. The establishment of the act came after the divorce date and the agreement of separation. Susan proposed that the application of the act in this circumstance is unjustified.

In terms of retroactivity the court stated, “When a party argues that a statute is impermissibly retroactive we first "must determine whether the law . . . has a retroactive effect. If not, and assuming the law is otherwise constitutional, no further inquiry is necessary."  If the statute is determined to be retroactive we must ask two more questions: "whether the Legislature clearly intended it to be retroactive" and "[w]here it so intended, . . . whether retroactive application is constitutional."

To answer the first question, the SJC applied the "new legal consequences" test as articulated by the United States Supreme Court in Landgraf.  The SJC though it was important that Susan had an opportunity to show that the durational limits should not apply to her, and only created a presumption.  The SJC indicated that applying a presumption does not attach new legal consequence to the prior events and therefore does not violate due process.  "Thus, the act compels no new legal consequences to the bargains struck by parties in merged alimony agreements entered into prior to the act's effective date."

Both couples dealt with the Alimony Reform Act and both cases were affected by the new duration limits that stripped the obligation for alimony after a period of time. Though the definition of alimony still requires that the party with an ability to pay may be required to support the spouse with a need, these durational limits directly enforce the language added to the alimony definition by the Alimony Reform Act: "for a reasonable period of time."

Written by Justin Kelsey & Patricia Cordischi

Tuesday, April 24, 2018

The Tax Cuts & Jobs Act of 2017 Includes a Divorce “Penalty”

Guest Post from Julie Tolek*

Divorces are difficult, over all, but add to them the stress of trying to understand tax law, and the road ahead looks even darker. One bright spot in the tax laws (pre 2018) was that a tax benefit existed in cases involving alimony. Under the IRS tax rules before 2018, alimony was tax deductible the payor, while being taxable to the recipient. But this has changed under the Tax Cuts & Jobs Act of 2017.

Alimony and Taxes
The issue of alimony is more common in divorces where there is a significant difference in income as opposed to where the parties’ incomes are similar. Where a high income earner is paying alimony they are usually in a higher tax bracket, so the tax deductibility of the alimony can save the payor - and even the family unit as a whole - a significant amount of money. This savings is sometimes so important that parties with potential alimony payments will build all other financial aspects of the divorce around alimony, and calculate which scenario will give the best tax break or keep the most money in the family over all.

The Tax Cuts & Jobs Act of 2017– A Divorce “Penalty”?
Among other changes, under the new tax law, even though the recipient would take the alimony tax free, the total tax bill per family will go up. The payor would pay alimony with post-tax dollars and would no longer have the benefit of that alimony tax deduction. The recipient’s net income would increase, which in this case would be a benefit to the recipient, if the alimony order stayed the same. However, the payor’s detriment will result in a higher tax payment overall for the family and likely lead to lower alimony orders.

Two Classes of Divorced Couples 
Under the new tax law, the change to alimony tax deductibility doesn’t take effect until January 1, 2019, and doesn’t apply to alimony agreements entered before that. This means that people divorced prior to December 31, 2018 will continue to have their alimony payments deductible to the payor and taxable to the recipient (benefiting from the tax bracket differences). Meanwhile, those divorced after December 31, 2018 will not get that benefit (unless the law changes again).

What happens when the alimony payor or recipient wants to modify the alimony order? 
Generally, alimony orders are modifiable when there is a material change (though this is not the case for survived orders). The difference in taxes resulting from the new plan would certainly be considered such a change, except that the provisions don’t apply retroactively to old agreements. So this tax law won’t result in a change that causes the need to modify the order. If other changes occur and the parties are looking to modify their alimony order, the new tax law allows them to keep the tax deduction unless they opt out in their modification agreement. It’s not clear how court orders will be treated until the IRS writes regulations on this issue.

If your divorce takes place after December 31, 2018, how will this tax change affect you?
There are some important things to consider if your divorce is taking place in this new tax scheme:

First, educate yourself about the details of alimony in Massachusetts. The Alimony Reform Act contains language limiting the amount and duration of alimony, as well as defining multiple types of alimony. You can learn more about The Alimony Reform Act and subsequent case-law here: Skylarklaw.com/alimony  The new tax law means that these payments will not tax deductible to a payor for post-2018 divorces, nor will the income be taxable to the recipient.  This may affect how the Alimony Reform Act caps are enforced, but we won't know for sure what the court will do until there is new case law. 

Second, if you intend to obtain an alimony order through agreement, pay attention to the details in the language that will be part of the order or agreement! Remember, survive means that an agreement cannot be changed by a court in the future. So if you have alimony surviving, consider carving out circumstances under which you would want flexibility to modify the order, such as if there is a change in the tax law. If the tax law changes back and alimony becomes tax deductible again, it may make sense to adjust your order. Overall, orders and separation agreements as part of divorces should be written specifically enough to be clear, while at the same time being flexible enough to allow for modifications in extreme or unpredictable circumstances such as changes in the tax law.

Finally, before you file for divorce, consider out-of-court dispute resolution before resorting to litigation. Mediation and Collaborative Law are voluntary processes that give you and your spouse control over your divorce and its terms. Mediation and Collaborative Law allow you to discuss all aspects of your divorce, go over different options, and decide what is best for you and your family. Armed with the knowledge gained from discussion, you can easily write terms that work for you and give you carve outs and flexibility when and where you want it.

*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.

Thursday, March 22, 2018

E-Filing has Arrived in the Massachusetts Probate & Family Court (Sort of)

The Probate & Family Court is moving to electronic filing (through http://www.efilema.com/).  As with any changes in the courts, this is a process and, as of the time of this posting, only certain types of cases may be filed.  The court in cooperation with their vendor, Tyler Technologies, has been providing in-person trainings around Massachusetts.

We attended the recent training at the Worcester Law Library and wanted to share some of the most important takeaways:

1. Available to All

The e-filing system is available to both attorneys and clients.  This means that pro se (unrepresented) parties can file documents on their own through e-filing as well.

2. Available in Every County

The e-filing system is available in every county in Massachusetts as of this posting.  Since this system is new, different counties may have different policies on how they are implementing the interplay between electronic and paper filings.  For instance, some counties may require documents be filed in a specific order.

3. Not Mandatory (Yet)

E-filing is not mandatory in Massachusetts at this time.  It is recommended for cases where e-filing is available that parties (and attorneys) use this service as it will reduce administrative cost and wait times on docketing.

4. Not Available in All Cases (Yet)

You may currently e-file only the following types of cases in the Massachusetts Probate & Family Court:
  • Complaint for Divorce (1B only - no Joint Petitions) 
  • Petition for Formal Adjudication
  • Petition for Informal Probate
  • Voluntary Administration Statements
  • Petition for Guardianship of Incapacitated Persons
All other types of cases must be filed in person or by mail still.

No word on when other types of cases will be available, but we're hoping they will add Joint Petitions and post-divorce filings (such as Complaints for Modifications and Complaints for Contempt) soon!

5. Timing of Filings

While the e-filing system is always open (24/7 online), if something is filed after the court's business hours it is treated as being filed the next business day that the court is open.

6. Fee for Filings

The filing fees for any submission are the same as in person, except that there is an additional $7 electronic filing fee for each filing.

If any document in your filing is incorrect, the entire filing will be returned.  This is the same as what happens when the court returns a paper filing, except that the submission fee is returned (whereas a paper filing you would have to pay the postage a second time).

7. Filing Format & Electronic Signatures

Documents must be attached as PDFs.  Since originals aren't being physically filed, electronic signatures will be acceptable (except where notarization is required).  

Original Marriage or Death Certificates do not need mailed to the court (must be certified and legible on the pdf).  An original will DOES need to be mailed or delivered to the court within five (5) days of e-filing.

8. Service on Opposing Counsel/Party

For service of summons or citation, they will be mailed and required to be served in the traditional manner.  For filings that would only require mailed service, such as a Motion, it is still recommended to serve the filing by mail or in person on opposing party/counsel at this time (even though the electronic system offers an option for "serving" the other side by entering their information).  

Hopefully this necessity of mailing notice will be eliminated as the E-filing system becomes more ubiquitous. 

9. The E-Filing System is Separate from the Electronic Docket

MassCourts is still the resource for obtaining access to the electronic docket.  Once a filing has been approved by the court through the e-filing system it should then appear on the MassCourts site.

10. More Information is Available Online

The efileMA site has additional FAQs, registration links and web-training sessions.  To receive news and updates e-mail efilenews-join@jud.state.ma.us

Tuesday, February 27, 2018

Meet our Intern - Kristyn Stoia

We have a new member of the Skylark Team:

Kristyn Stoia is currently a Freshman at Boston College majoring in English and is also pursuing the Pre-Law track. Outside of academics, she can usually be found at the barn riding for the Equestrian Team, or in the stands during athletic games playing for the BC Band. Kristyn has a keen interest in Law and is looking forward to her first experience in the legal profession.

During her time at Skylark, Kristyn will be working on making the website more accessible for clients and visitors alike. Modifications will be made to make the website better accessible for those who are visually impaired, hearing impaired, and any other impairments that can limit access to our resources. The user experience for every individual who visits our website is a major aspect of our ethos, so making the appropriate adjustments to our website is an endeavor that we’re looking forward to accomplishing.

The inspiration to undertake this project initially game from Haben Girma, who is a disability rights lawyer and advocate and was the very first deaf-blind graduate of Harvard Law. She travels the world sharing her message of equal accessibility for everyone.  Haben addresses the importance of the user experience for individuals of all different capability levels. After having the pleasure of hearing her speak at a conference in New Orleans, we were influenced to take on an accessibility project of our own in the pursuit of making our legal services and our online resources more accessible for everyone.

We’re eager to hear what we can do to make the website more accessible for each and every person. Please don’t hesitate to contact us with suggestions of how we can accomplish accessibility for your individual needs.

Monday, February 26, 2018

Future Changes to Alimony are Limited by Marital Lifestyle: How the Young v. Young Decision Limits Litigated Alimony Cases

Couple Arm Wrestling: Is this the best way to Agree on Alimony?
post by Jennifer Hawthorne

In most families, when spouses decide that getting a divorce may be the best road forward for their family, one of the first questions that almost universally causes concern is what lifestyle will my family live after the divorce. Will there be enough money to support two households and keep us comfortable and even relatively close to the lifestyle we live now?

In Massachusetts, the two basic statutory means for one spouse to provide support for the other’s household after a divorce are child support and alimony. There is a third option that essentially combines the two into unallocated support, which you can read more about by clicking here.

Child Support changes with new circumstances:

If there are children involved, discussions with professionals will usually start with child support which is based on guidelines that dictate a specific formula be applied resulting in a presumptive amount of support. During such a discussion, you will learn that in order to deviate from that presumptive amount, the judge will need to make specific findings, even if you agree. In other words, the guidelines provide a good baseline to begin discussing support in situations where there are children in need of support. You would also learn that anytime circumstances change, child support can change to address the new circumstances so that both households are impacted by fluctuations in either spouse’s income or in changes to some child related costs.

Alimony changes with new circumstances, with some exceptions:

Naturally then, if the conversation turns to alimony, you may expect to hear us talk about the formula in the statute and how families will share the impact of changes if alimony is ordered. Unfortunately, although the ability for a judge to order alimony is statutory, a formula for alimony does not exist. Instead, in order for the court to order alimony, first one spouse must show that there is a need to receive support and that the other spouse has the ability to pay support. Once you have established need and ability to pay, the next question is how much support should be ordered. The statute says that the order should be capped at need or 30%-35% of the difference in the spouses’ income.

At this point, you may be thinking to yourself, well that’s fine, so once I know the percentage of alimony, I can expect it to adjust according to our respective incomes like child support. After all, if you have been part of a long-term marriage you may have grown accustomed to adjusting your lifestyle to your families increasing (or decreasing) income over time, you may also be waiting for us to tell you that alimony will fluctuate with future changes in income impacting both households similarly. Unfortunately, the Supreme Judicial Court recently said, not so fast.

The Young v. Young decision:

In Young v. Young, the Court clarified that an alimony order should always be considered in terms of the parties’ marital lifestyle. The Court explained that this means that a judge cannot simply order a percentage of the difference in income as an alimony order and must determine the dollar amount that is required to keep the lower earning spouse living the lifestyle that exists at the time of the divorce, if possible. Any future gains in income by the other spouse are for that spouse to enjoy since they are occurring after the parties are no long married.

The decision went on to explain that specific dollar amount awards are preferred from the Court’s perspective because self-adjusting awards are more difficult to enforce and they encourage manipulation of the alimony payor’s income to lower alimony payments.  The Court did mention a few specific situations where a self-adjusting order may be appropriate such as where there are large annual fluctuations in income compromising the payor’s ability to pay but where an upward income adjustment and corresponding increase in alimony would not leave the recipient better off than at the end of the marriage, or where the goal of the self-adjustment clause is to keep the recipient spouse in the same lifestyle that existed at the end of the marriage through cost-of-living provisions to adjust for inflation or exchange rate fluctuations when one spouse is living abroad.

The Court also distinguished a self-adjusting durational alimony order from an order of reimbursement alimony which may be ordered where one spouse is on the cusp of a change in lifestyle as the result of education and the other spouse supported the family during the period the soon-to-be higher income earner was completing the education program. These exceptions highlight that for the Court, the important factor is tailoring the order to the marital lifestyle as well as ensuring the award does not exceed the payor’s ability to pay. The Court also noted that the Young decision does not change a judge’s ability to order an unequal property division as a means of accounting for the fact that one spouse has a greater ability to earn income in the future than the other spouse.

The question remaining is where does that leave folks who are ending their marriage but still think of themselves as a family and believe that both family households should benefit from any increase in income the family experiences. After this ruling, is there a way for parties to enter an alimony award that considers future changes in income? It seems clear that litigation is unlikely to result in that sort of order absent a unique set of circumstance that allow the judge to make a specific finding of a need for a self-adjusting order.

The Benefits of Dispute Resolution and Agreements:

Like other decisions of the Court discussing self-adjustment clauses, this decision does not prevent the parties from agreeing to a percentage as an alimony award. By using an alternative dispute resolution process such as mediation or Collaborative Law, spouses could agree that they will adjust the alimony award to a certain percentage of the difference in income over time writing in an explanation of why they believe that order is fair and equitable. In other words, instead of asking a judge to make specific findings and hoping that a judge views those circumstances as worthy of a percentage order, the spouses could provide language in a Separation Agreement taking away the need for the judge to make specific findings.  By taking the decision making out of a judge’s hands, the spouses may be able to create a plan for supporting two households that feels fair to both of them without having to predict the future or use property division to attempt to create similar future lifestyles for the spouses.

While reaching such an out-of-court agreement may initially seem like simply an opportunity for recipient's to receive more than they might through the court process, there are advantages to both sides by entering into dispute resolution.  There may be other issues that the payor wants agreement on, which might not be available from the court.  In addition, both parties can take advantage of the cost and time savings, and the certainty that reaching an agreement provides.  If you find yourself in court wondering about the best way to determine how to deal with future changes in circumstances, the best answer is to craft a better and more comprehensive agreement now.  Consider whether an out-of-court dispute resolution professional can help.

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