When drafting a parenting plan for separated parents of minor children, there are some basic things that should be in every plan.  These include answering the following questions: Who has decision making responsibility (also known as legal custody)? Who has residential responsibility and when? In other words, design a base parenting schedule (also known as physical custody). When can the base schedule be changed? For example including a holiday and vacation schedule. Are there any necessary agreements around communication? Are there any limitations or notification requirements related to travel with the children? How and when can the schedule be changed? What other events require notification (such as illness of a child)? What is your plan for dealing with disagreements? Some parenting plans keep these terms relatively simple and leave a lot of room for flexibility between the parents.  There are pros and cons to any choice when drafting an agreement, and a flexi...

This is the first article in our series on Divorce Agreement drafting. For a list of the upcoming articles scroll to the bottom of this post.  If you want to jump right to our useful resources try these links: Download a free Agreement Checklist Download a free Memorandum of Understanding Buy a Divorce Agreement Template We hope you find these resources useful.  While our focus is on Massachusetts agreements, many of these tips will apply in other states as well.  Keep reading to learn more: What is the difference between a Memorandum of Understanding and a Divorce Agreement? To settle a divorce case in Massachusetts, the Probate and Family Court requires that the spouses file an agreement resolving all terms related to dissolving their marriage.  This is typically called a Divorce Agreement or Separation Agreement.  It is a public document that the judge must review and approve for a divorce to be finalized in Massachusetts. To be approved, ...

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 answ...

Very few divorce cases actually go to trial.  Even cases that start out with both parties intending to litigate, or "have their day in court", usually settle.  I've heard many litigators argue that since most of their cases settle anyway, the court process is better than mediation because it offers more protection to the participants.  However, there is a serious problem with settlements that happen during the litigation process:  they are rushed and people often feel pressured into signing at the last minute. Despite the fact that the court process of a divorce typically takes longer than a mediation, the court process has a lot of what I call "hurry up and wait."  The litigation process typically involves long periods of waiting for deadlines to pass and for the next court hearing and then a flurry of activity right before the court hearing is scheduled.   Then, if that flurry of activity doesn't result in a settlement you're back to waiting. For e...

A number of recent appellate decisions in Massachusetts have addressed the boundaries of what Probate and Family Court trial judges have the power to do.  Agreements reached between the parties, however, can include provisions that the judges don't otherwise have the authority to order.   In this four part blog series we will explore some of the important areas that an Agreement can address but the trial court is limited in addressing.  These are just some of  the most recent examples, and not intended to be an exhaustive list of all the ways that Agreements are better than  letting a Judge decide your fate . Part 4:  Parent Coordinator:  Do you want help resolving parenting disputes without returning to court? In Part 1 , we discussed how the Appeals Court in Ventrice overturned a lower court's order that required parties to engage in out-of-court mediation prior to filing any further action in the Probate and Family Court.   While Parent...

A number of recent appellate decisions in Massachusetts have addressed the boundaries of what Probate and Family Court trial judges have the power to do.  Agreements reached between the parties, however, can include provisions that the judges don't otherwise have the authority to order.   In this four part blog series we will explore some of the important areas that an Agreement can address but the trial court is limited in addressing.  These are just some of  the most recent examples, and not intended to be an exhaustive list of all the ways that Agreements are better than  letting a Judge decide your fate . Part 3: Survived Agreements:  Do you want to decide now that certain issues can never return to court? The issue of survived v. merged agreements can often be a confusing one, but it is actually relatively simple:  Merged agreements can be changed in the future by a Court, and survived agreements can NOT be changed in the future by a C...

A number of recent appellate decisions in Massachusetts have addressed the boundaries of what Probate and Family Court trial judges have the power to do.  Agreements reached between the parties, however, can include provisions that the judges don't otherwise have the authority to order.   In this four part blog series we will explore some of the important areas that an Agreement can address but the trial court is limited in addressing.  These are just some of  the most recent examples, and not intended to be an exhaustive list of all the ways that Agreements are better than letting a Judge decide your fate . Part 2: Self-Executing Adjustments - Do you want to return to court for changes you can anticipate? On March 18, 2015, Doris Tennant and Lisa Smith presented to the Massachusetts Council on Family Mediation on the issue of Self-Modifying agreements, also known as self-executing provisions.  The program was an excellent overview of the recent case law...

A number of recent appellate decisions in Massachusetts have addressed the boundaries of what Probate and Family Court trial judges have the power to do.  Their powers are limited by statute, case law and the Massachusetts Constitution, and sometimes judges exceed those powers by crafting solutions that test the boundaries of their authority. These limitations, however, highlight one of the reasons that more and more people are seeking out-of-court methods of resolving their family conflict.  Agreements reached between the parties can include provisions that the judges don't otherwise have the authority to order.   In this four part blog series we will explore some of the important areas that an Agreement can address but the trial court is limited in addressing.  These are just some of  the most recent examples, and not intended to be an exhaustive list of all the ways that Agreements are better than letting a Judge decide your fate . Part 1:  Future Di...

If you filed a Joint Petition for Divorce in Massachusetts then you will participate in an uncontested divorce hearing and the Judge will then issue Findings of Fact the day of the hearing.  A Judgment of Divorce Nisi will issue after thirty (30) days, and it will become Absolute after a further ninety (90) days. This means that if you file a Joint Petition for Divorce you are not legally and officially divorced until 120 days after the divorce hearing date. If you filed a Complaint for Divorce  then your case will end either with a trial (if you don't settle) or an uncontested divorce hearing (if you settle).  If you reach an Agreement, then a Judgment of Divorce Nisi will issue and be effective as of the date of the uncontested divorce hearing, and it will become Absolute after a further ninety (90) days. This means that if you file a Complaint for Divorce you are not legally and officially divorced until 90 days after the divorce hearing date. Therefore...

In Massachusetts, the court has the authority to order divorced parents to contribute something to their children’s college education expenses.  Usually the court won’t deal with this at trial unless the children are almost of age to attend college, but most agreements will address the issue in some way. When it comes to the payment of college education expenses, the specific language that your Separation Agreement contains is very important. Many agreements require parents to contribute in proportion to their incomes and abilities at the time the college bill becomes due. However, if your agreement states that you are to share equally, then that could require you to contribute one half of the cost. How educational costs are defined by the agreement could differ greatly and the specific language of your Separation Agreement will be key to determining exactly what you are required to pay. And if you are required to pay a specific amount and you don't you could be liable fo...

As described in our previous post, Should my Child Support Change?, there are two types of court orders which always merge into the Judgment, meaning they can be modified if there is a material and significant change in circumstances:  child custody and child support. The Court retains jurisdiction over provisions relating to child custody and visitation to protect the children. For example, in the event one party becomes unfit to parent the children it would be detrimental to the children to have that provision survive and be unchangeable. This means that if there is a change in circumstances which has caused your children to be put in an unsafe situation, you can bring that change to the court’s attention and potentially obtain a change in the custody and parenting plan orders.   If the change is an emergency situation, then you can request that the court immediately transfer custody or limit parenting rights by filing an Emergency Motion along with an Emergency Affi...

Whether or not an alimony order can be modified post-divorce depends first on whether the order merged or survived.   Many decisions in a divorce agreement, such as property division, survive the Judgment and cannot be changed.  When reaching an agreement, spouses can decide whether or not to make alimony orders or waivers permanent by surviving them or merge them into the Judgment.  If merged this means that such orders can be modified if there is a material and significant change in circumstances.  Merging alimony orders is more typical because no one knows exactly what could change in the future. If the order merged, then the duration of an alimony order may be modifiable under The Alimony Reform Act of 2011.  We have explored this possibility at length in our previous post:   Modification under the Alimony Reform Act of 2011: Updated Flowchart . In addition, under both the current law and the new law (which takes effect on March 1, 2012), alimon...

In our last post we explored reasons that there may be some inequities post-divorce that cannot be remedied.  Many decisions in a divorce agreement, such as property division, survive the Judgment and cannot be changed. However, there are two types of court orders which always merge into the Judgment, meaning they can be modified if there is a material and significant change in circumstances:  child custody and child support. The Court retains jurisdiction over provisions relating to child custody and visitation to protect the children. For example, in the event one party becomes unfit to parent the children it would be detrimental to the children to have that provision survive and be unchangeable. Although typically paid to the custodial parent, child support is also for the benefit of the child, not the parent. Therefore, you cannot give away your child's right to seek greater child support if there is a material and significant change in circumstances. In order ...

While our last post explored what happens when your ex violates the Divorce Judgment, what happens if everyone is following the agreement perfectly, but one of you has clearly got an advantage? A common complaint that potential clients express to us is a dissatisfaction with their prior agreement or judgment because their ex-spouse seems to be doing very well.  They might have a bigger house, or take a lot of vacations, or have a really nice car.  In some cases this is a legitimate indicator that a support order may not be fair, and in those cases a Complaint for Modification may be warranted (our next few posts will address when this is appropriate). However, many times this imbalance reflects something which can’t be fixed by a Complaint for Modification.  In some cases exes have not fully accepted the divorce yet, and comparing your lifestyle to your exes is an indication that you haven’t yet moved on.    Even with a well-crafted agreement your life i...

Unfortunately, sometimes the end of a case isn't the end of a dispute. Often two people who just don't get along anymore end up back in court to resolve an issue that arises after the divorce case has ended. Whether the case ended with an agreement (usually called a "Separation Agreement" or a "Divorce Agreement") or with a trial, there will be a judgment dividing the assets and liabilities of the former spouses, and defining any support or other obligations owed to each other, or to any children. This Judgment can be amended or enforced as necessary and dependent on certain circumstances.  Our next series of posts, entitled Post Divorce Problems, will address some of the common reasons that you could end up back in court, post-judgment. In some instances, ex-spouses return to court when one party fails to follow the judgment. When the judgment is clear (and unambiguous) as to what that individual is supposed to do, or not do, and that individual viol...

Many individuals come to our office having gone through mediation with their soon-to-be-ex-spouse, asking us to review the separation agreement that they have negotiated. Whether we ultimately advise a client to sign a proposed agreement or not depends on the contents of the document and the individual's particular set of circumstances, 1. Has the marriage been irretrievably broken down with NO CHANCE OF RECONCILIATION ? 2. Does the Agreement completely resolve all issues relevant to the marriage in a fair and reasonable manner? 3. Is this an agreement that you can live with? In the end, it is not our life but yours, and the divorce agreement will govern some important aspects of your life in the future, especially when there are children involved. Being able to "live with a divorce agreement" means not only being happy or satisfied with it, but also being able to perform any of the agreement's obligations. If the agreement is not something that you can li...

For an explanation of the difference between merger and survival of Separation Agreement provisions read our past post on this question. There are two types of provisions that cannot survive a Judgment of Divorce but must be merged. These are provisions relating to child custody/visitation and child support. The Court retains jurisdiction over provisions relating to child custody/visitation to protect the children. For example, in the event one party becomes unfit to parent the children it would be detrimental to the children to have that provision survive and be unchangeable. Although there is another method by which a parent can give up their parental rights permanently (through a Waiver of Parental Rights), there is not any way that a party can guarantee they will keep their rights forever. The right to be custodial parent will always be subject to your continued fitness to parent your children. Although typically paid to the custodial parent, child support is also for th...

One of the most important legal distinctions for clients to understand when signing a Divorce Agreement (also commonly called a Separation Agreement) is the difference between merger and survival . The distinction between these two designations could mean all the difference in whether an Agreement is fair and reasonable or not. It can affect whether or not you will have to return to court in the future, and could determine issues as important as whether or not alimony can be changed (increased, decreased, added, or eliminated) in the future. Unfortunately, most pro se parties who prepare Separation Agreements on their own do not understand what this language means. Oftentimes I have also found that parties who used a mediator, but did not review their Agreement with a lawyer, do not fully understand what they've agreed to when it comes to the merger/survival clause. This clause is so important that spending a few hundred dollars to at least review your proposed Agreement wi...

Courts in Massachusetts are backed up, always have been backed up, and will presumably be backed up for the foreseeable future. Because of this, divorce cases can often take over a year to complete, and the time that is actually spent in court can feel rushed due to the number of other cases. All too often a decision is made by the court leaving one spouse feeling as if he or she did not get a chance to tell the full story. Mediation provides an opportunity for divorcing spouses to discuss the process of their separation in a more personal and private forum than in a court room, often times saving the divorcing couple thousands of dollars by avoiding expensive litigation. Divorcing spouses are able to speak to one another in the presence of the mediator, and deal with issues that a court might not want to spend too much time on. Attorney Justin Kelsey brings his experience as a family law attorney with him into mediation in order to provide divorcing spouses with useful feedback re...