Guest Post from Julie Tolek * That magical moment that you have been waiting for has finally happened. Your significant other proposed and YOU SAID YES! Or you proposed and YOUR SIGNIFICANT OTHER SAID YES! You both have your wedding goggles on and all you can see are hearts and rainbows and as you start to plan the wedding, romance is in the air and the love is palpable. You set the date. Your friends and family then save the date. The flowers have been ordered. The wedding planner is pulling everything together. And then one of you dares utter the “P” word. Prenup. PRENUP. PRE. NUP. The record stops and the world goes silent and time stops and you wonder if you really heard what you thought you heard. PRE Nope.  Or if you are the one who brought it up, you wonder if it’s too late to slur your words so they sound like something else. “Honey, I said we need to CLEAN UP. I can’t BELIEVE you thought I said PRENUP!”  And then you avoid eye contact. Everything...

Guest Post from Beth Aarons* Massachusetts estate planners enjoyed a collective sigh of relief as the Supreme Judicial Court (SJC) agreed to further appellate review of the Pfannenstiehl’s plight to determine whether the husband’s interest in his family’s trust should be divisible as a marital asset during divorce.  The SJC issued an opinion that such a trust should not be divided as part of the marital property.  [ SJC-12031 ] When the Pfannenstiehls appeared in case law three years ago, the MA Appeals Court had upheld the Probate and Family Court’s determination that the husband’s one-eleventh fractional beneficial interest in his family’s trust balance (there were 11 living beneficiaries at the time) was a marital asset, with 60% of his one-eleventh share to be paid to the wife as part of the property division in their divorce.  The class of trust beneficiaries was open to include any future descendants of the donor, but the lower court used the existing number...

Post by Beth Aarons * Many divorcing parents put their estate planning issues on the back burner as part of their post-divorce “to do” list. Divorcing parents with minor children or children with special needs, however, may wish to include a guardian nomination provision within their divorce agreement.   Guardian nomination provisions are not required by the Court as part of the divorce agreement, and are therefore seldom seen, but having the conversation prior to the divorce and memorializing the couple’s agreed-upon wishes is an easy way to protect the children from a potential nightmare down the road. Most divorcing couples are primarily focused on the immediate issue of transforming a single family unit into separate lives: division of assets and liabilities, transitioning to two households, and creating the parenting plan.  These issues contemplate the parents living apart, with the issue of the death of one parent arising primarily in the context of a triggering...

Post by Julie Tolek * Mediation is often referred to as “facilitated negotiation” or a form of voluntary dispute or conflict resolution. Using these terms to describe mediation automatically brings to mind scenarios where couples are fighting over a problem or situation that has already happened. But what if we turned that process around and reversed it? What if we mediated a plan before something bad happens? Using mediation as a planning tool to help facilitate negotiation and communication before something bad happens can be equally as valuable (and sometimes even more so) than applying mediation to solve a current problem. After something bad happens, emotions are usually raging, parties are sensitive, often angry, and sometimes even vindictive. If you have ever tried to solve a problem (or even have a conversation) with someone who is in a bad mood or having a bad day, you already know it’s like talking to a wall. Now imagine if you try to plan for potential issues befo...

Prenuptial and Postnuptial Agreements can be strong and useful planning tools that help couples plan their lives together.  Just like a properly done estate plan, a prenup can protect a families' most valuable assets and reduce tensions by setting out a simple outline for the future. When prenuptial and postnuptial agreements are created collaboratively families are strengthened because everyone has a voice and buy-in to a clear plan for their family. However, many engaged couples don't hire collaboratively trained attorneys when negotiating a prenup because they haven't heard of collaborative law or they rely on a recommended lawyer without doing any research of their own.  Doing a little research before hiring an attorney is critical because the worst mistake you can make when negotiating a prenup is to hire an attorney who only knows litigation.  Litigation is an adversarial process that encourages people to withhold information unless directly requested.  Lit...

If you follow our posts at all you're probably aware that attorney Justin Kelsey is a Collaboratively trained Divorce attorney and Mediator.  But did you also know that three other attorneys at Kelsey & Trask, P.C. are Collaboratively trained as well? Full time Associate, Valerie Kua , and of counsel   Jonathan Eaton  have both taken the Collaborative Training and regularly use those skills in their family law practice to settle both Collaborative and cooperative cases (if you don't know the difference click here ).  In addition, of counsel to Kelsey & Trask, P.C., Beth Aarons  is a trained Collaborative attorney who practices in both family law and estate planning & probate. At Kelsey & Trask, P.C. we strongly believe that Collaborative Law is the future of dispute settlement, and not just in divorce cases.  For example, if you have an estate planning or probate dispute, you may want to consider Collaboratively trained counsel as well....

from Wikipedia The Middlesex Probate & Family Court already has a very successful and convenient "Fast Lane" program for so-called uncontested divorce petitions (Section 1A Joint Petitions for Divorce).  It saves time for both the courts and the parties to be able to walk an uncontested matter in to the courthouse and, if all of their paperwork is in order, be heard the same day. According to a press release dated July 9, 2014 ( available here ), the Court will now be expanding this type of procedure to include Informal Estate Administration Petitions: "Tara E. DeCristofaro, Register of the Middlesex Probate and Family Court, has announced that she will be piloting a walk-in session for informal petitions. The walk-in session will be available in the Registry every Tuesday afternoon from 12:00 pm. - 3:00 pm., beginning August 5, 2014. If the program is well received, plans are to expand it to multiple days per week." As with joint petition divorce walk-...

The friends of Kelsey & Trask, P.C. are offering some great upcoming seminars and workshops to help members of the public understand their options better when it comes to legal issues. From time to time we will try to let you know about these opportunities. Here are three that we recommend in November: Social Security and Retirement Planning: Social Security Workshop at Council on Aging Concord, MA - Senes & Chwalek Financial Advisors is pleased to present Kurt Czarnowski, former New England Regional Communications Director for the Social Security Administration, who will present “Social Security and Retirement Planning” at the Concord Council on Aging on Monday, November 28, 2011 at 6:30 pm. Social Security's retirement program has been a basic part of American life for more than 76 years. Because we're living longer, healthier lives, we can expect to spend more time in retirement than our parents and grandparents did, and achieving a secure, comfortable retirement i...

The following is a joint Blog Post prepared by Justin Kelsey, Esq. of Kelsey & Trask, P.C. (co-author of Scaling the Summit: A Family Law Blog ) and Danielle G. Van Ess, Esq. of DGVE law , LLC (author of the Massachusetts, Wills, Trusts, and Estates blog). The Judges in the Probate & Family Court have a lot of discretion to decide what constitutes income when the Court is considering child support or alimony. According to M.G.L. c. 208 s. 34 , the court can consider "amount and sources of income... and the opportunity of each for future acquisition of capital assets and income" when dividing property or awarding alimony. This language obviously leaves a lot of leeway for the court to consider all "sources of income" including potential "future" income. Similarly, the Massachusetts Child Support Guidelines indicate that the court can consider "gross income from whatever source regardless of whether that income is recognized by the I...

The following is a guest blog post written by our colleague Danielle G. Van Ess, Esq. of DGVE law, LLC in Hingham, MA. You might be surprised how many of my new estate planning clients realize, after we’ve talked a little, that their ex-spouses are still named as the primary beneficiary of their life insurance policies or, more often even, their retirement accounts. And given the value of those assets, their reactions in that moment of realization are far less surprising. If you are divorcing or divorced, you need to ensure that you have changed the beneficiary of those and other pay on death type accounts. And given that you will no longer be sharing your life with your ex-spouse, it’s likely you won’t also want him or her to be the one to speak for you in the event of your incapacity or be the one to make medical decisions for you, including whether to discontinue life support, if you are ever unable to do so yourself. So if you already had such estate planning documents in place...