Scaling the Summit: Divorce, Families, & Options

Can a parent visit their children if there is a restraining order protecting the other parent?

noreply@blogger.com (Justin Kelsey) — Wed, 15 May 2013 14:00:00 +0000

In a recent Supreme Court decision, Moreno vs. Naranjo, SJC-11070 (2013) , the SJC dismissed an appeal as moot for a 209A order that had expired, but addressed the underlying issue anyway in order to provide guidance to District Court judges. In Moreno the District Court judge had considered the impact of the order on visitation and had ordered a 6 month order instead of 1 year because of the likely impact of the order on the relationship between the defendant and the child. The SJC indicated that this consideration was improper.

In deciding the length of an order, the only consideration should be the "time reasonably necessary to protect from abuse the plaintiff or any child in the plaintiff's care or custody." This doesn't mean that an order can't include provisions for visitation, but only that the impact the order has on visitation shouldn't affect the choice to issue the order or for how long. That choice is dependent solely on the necessity of the order to provide protection from abuse to the plaintiff.

When a restraining order, also know in Massachusetts as a section 209A Abuse Prevention Order, is obtained by a Plaintiff, it will include orders relating to children if the parties have minor children together. Usually a 209A restraining order will order the Defendant to stay away from any children and award custody of the children to the Plaintiff.

In Massachusetts, the District Court issues most 209A restraining orders but the Probate & Family Court can as well. Provisions relating to minor children can be amended to allow visitation, but typically the District Court would prefer that the Probate & Family Court deal with those provisions. If a party requests a parenting time schedule from the Probate & Family Court, the Judge in that court can amend the restraining order through a process we discussed in this previous post.

The provisions relating to visiting the children don't change the orders preventing abuse of the parent, but practical considerations (like pick-up and drop-off of the children) may need to be considered to avoid violation of no-contact provisions.

Should you Give your Ex-Wife a Mother's Day Card?

noreply@blogger.com (Justin Kelsey) — Sat, 11 May 2013 23:23:00 +0000

I stopped at the grocery store yesterday to pick up a few items. Since this weekend we celebrate Mother's day I made the obligatory trip down the greeting card aisle. Of course, the seasonal section was a sea of pastel colored cards ranging from religious to sappy to funny (or appropriately politically correct kinda-funny). There were cards separated into sections "For My Wife", "From Daughter", "From Son", for grandmothers and even great-grandmothers.

But there weren't any cards in the aisle labeled "For My Ex-Wife."

Why not?

One Judge in Plymouth County has a standard speech he gives divorcing spouses right before he approves their final divorce. Judge James Menno tells divorcing spouses who are also parents: "Today I divorce you as husband and wife, but you will never be divorced as parents." Divorced parents are still Mom and Dad, and nothing changes that.

In many cases (maybe even most cases), divorce involves a breakdown in trust between the two parties. Co-parenting with someone with whom you don't have a trusting relationship can range from difficult to impossible. In Collaborative Divorce and Mediation, we often focus on the ways in which couples can build communication and enough trust to co-parent effectively after their divorce is final.

One of the most powerful skills that couples can work on to build trust and cooperation is acknowledgement.

We've all heard the complaints that separated parents have about the other parent. Parenting together is difficult enough, and parenting apart is bound to lead to even more misunderstandings. But how often do you hear separated parents praise each other's efforts. How different would conversations between exes be if they began with an acknowledgement of what the other parent is doing well, instead of starting in on what's wrong. When you acknowledge someone else's strengths they are more likely to be understanding when you have disagreements, because they can trust you to see both the good and the bad.

Even in difficult cases most people will still admit that the opposing party is a good parent. However, the absence of a Mother's Day card category "For My Ex-Wife" suggests that very few ex-husbands make a point of telling their ex-wife that they're a good mother, even on the day that is specifically designed for that.

So while we wait for greeting card companies to figure this out, buy your ex-wife some flowers or a brunch or a generic Mother's Day card. Even a cliched Mother's Day gift will make a big impression because even though you're not married anymore she is still a Mom, and that deserves recognition.

Who pays for health insurance after the divorce?

noreply@blogger.com (Justin Kelsey) — Wed, 08 May 2013 14:00:00 +0000

Even if you can stay on an ex-spouse's health insurance (which we cover in this previous post), there are two potential costs of staying on an ex-spouse's insurance.

The first is the actual cost of the plan. If the plan participant would qualify for a lower cost plan, for instance if the plan participant is single with no children, then the "additional cost" must be paid by either the plan participant or their ex-spouse. Usually the ex-spouse seeking this coverage will pay the "additional cost" but this must be defined in a court order or agreement.

In addition, the IRS defines excludaible fringe benefit costs to include only costs for spouses and other dependents. Ex-spouse coverage is not excludible and is therefore a taxable benefit. Although often overlooked by employers, many employers have started to treat these ongoing benefits to ex-spouses as taxable income to the employee.

For more information about the taxation of health insurance benefits read the following article: Health Insurance Taxation Issues Post Divorce by Justin Kelsey and Chris Chen.

What is the standard for amending child support orders?

noreply@blogger.com (Justin Kelsey) — Thu, 02 May 2013 14:00:00 +0000

The process for amending a family court order in Massachusetts begins with the filing of a Complaint for Modification. If you are able to reach agreement on the amendment of a child support order, you can save time in court by filing an administrative action called a Joint Petition for Modification of Child Support. Although this process may soon be available for other joint modifications, right now it is only allowed for child support, as we discussed in this previous post.

If you are unable to reach an agreement, then the court will decide if an amendment to your support order is appropriate. The typical standard for amending a court order is whether or not there has been a "significant material change in circumstances." Up until recently, we often advised clients that a good rule of thumb for determining significance is whether or not the change in circumstances would result in a 20% change in the child support order.

However, a 2013 SJC decision in Massachusetts, Morales v. Morales, SJC 11104, differentiates this standard for modification of Child Support orders. In child support modification cases, the SJC has indicated that "modification is presumptively required whenever there is an inconsistency between the amount of child support that is to be paid under the existing support order and the amount that would be paid under the Guidelines."

Despite language that is different in the Massachusetts Child Support Guidelines, the Court indicated that the statutory language is controlling. The Court explains a bit of the history behind how the Guidelines may have ended up with a differing standard, but absent some change in the statute, the Court indicates that the trial court must follow the "inconsistency standard" as contained in M. G. L. c. 208, § 28.

While this seems to imply that even a $5 change would require the court's attention, the cost of going to court should be a factor in determining a practical modification standard in each individual case.

In addition, it is also important to note that a Judge can deviate from the guidelines so long as they make a finding regarding the reason deviation is warranted. Since Judges are given broad discretion with these findings by the appeals court, Judges may use this language to find ways around granting changes in cases that they believe are wasting their time. In other words, common sense should still prevail.

To calculate what would be paid in a particular case under the current Guidelines visit our Child Support Calculator.

What is the Standard for Amending Parenting Plans?

noreply@blogger.com (Justin Kelsey) — Tue, 30 Apr 2013 14:00:00 +0000

Most parenting plans drafted by experienced practitioners will include language along the following lines:

"Nothing contained in this Agreement shall preclude both parents from jointly and voluntarily modifying the above-described co-parenting schedule or from reaching agreements for the co-parenting of the children by the parents that are not in conformity with the foregoing co-parenting schedule provided that such modifications and agreements be reduced to a writing in advance and be signed and/or otherwise (e-mail) confirmed and/or otherwise ratified by both Parties. Either parent may request a modification of the foregoing parenting schedule from the other parent. Any modification of the parenting schedule shall be requested reasonably in advance, except in emergency situations. The Parties shall take into consideration the best interests of the children when discussing exceptions to the parenting schedule."

This language is intended to encourage parents to discuss necessary adjustments to their parenting plan to accommodate things that come up in every day life which can make a strict schedule impractical.

But what happens when a more permanent change is required? If the parents can't reach an agreement as to whether a change is in the best interest of the children, then the court can decide whether a change is appropriate upon the filing of a Complaint for Modification.

Use our Parenting Calendar Worksheet
to help visualize proposed schedules

What standard does the court use in reviewing proposed changes to a Parenting Plan?

In a recent Massachusetts Appeals Court case, Diamond v. Diamond 82 Mass. App. Ct. 1124 (2012), the Appeals Court upheld a trial court judge's modification of a parenting plan, which added one additional overnight visit with the children in every two week period.

If it ain't broke don't fix it: The mother, who appealed, the decision, argued that the parenting plan was working, and that the court should, therefore, not make any changes to it.

Let's do the best we can: The court disagreed, finding that as long as there was a material change in circumstance that allowed for the court to hear a modification request, the trial court could make a change that will further the best interest of the children.

This is an important distinction between maintaining the status quo, if it is working, and making changes which the court is convinced will be better for the children. If the changes haven't been tested, then the court can't know for sure, but the Appeals Court in Diamond confirmed that the trial court's discretion allows for such a change.

As a practical tip, this ability of the court to make untested changes at a Modification trial, might be a good argument for temporary orders in a non-emergency situation. At least if a new schedule is tested in temporary orders we would that have information about whether it really was better for the children in practice. This type of negotiated trial and error is also often encouraged in mediation and collaborative practice, both of which are options that probably could have saved these parties a lot of money.

Cohabitation: What is it?

noreply@blogger.com (Kelsey & Trask, P.C.) — Tue, 09 Apr 2013 01:47:00 +0000

Cohabitation typically refers to two people in an intimate relationship living together while not being married. According to a USA Today article summarizing recent cohabitation statistics, cohabitation is increasing significantly. Women cohabiting with men as a first union has increased from 34% in 1995 to 48% in 2010, and the length of time that this first cohabitation has lasted is increasing as well. With cohabitation increasing, the likelihood of children born out of wedlock increases as well.

In post-divorce situations, cohabitation often comes up in alimony cases. Because alimony ends upon remarriage of the recipient it is common for recipients to cohabit instead of marrying when in an intimate relationship to avoid the end of their alimony. While it was always possible to argue that cohabitation reduced the need of the recipient, the Alimony Reform Act of 2011 included cohabitation specifically as a reason for terminating, suspending or reducing alimony.

M.G.L. c. 208 s 49(d) reads specifically that:

"General term alimony shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payor shows that the recipient has maintained a common household, as defined below, with another person for a continuous period of at least 3 months.

(1) Persons are deemed to maintain a common household when they share a primary residence together with or without others. In determining whether the recipient is maintaining a common household, the court may consider any of the following factors:

(i) oral or written statements or representations made to third parties regarding the relationship of the cohabitants;
(ii) the economic interdependence of the couple or economic dependence of 1 party on the other;
(iii) the common household couple engaging in conduct and collaborative roles in furtherance of their life together;
(iv) the benefit in the life of either or both of the common household parties from their relationship;
(v) the community reputation of the parties as a couple; or
(vi) other relevant and material factors.

(2) An alimony obligation suspended, reduced or terminated under this provision may be reinstated upon termination of the recipient’s common household relationship; but, if reinstated, it shall not extend beyond the termination date of the original order."

Because the law has only been in effect since March of 2012, there is no guidance from the appeals court yet on how this section will be interpreted.

It is important to note that while the language allowing Judges to terminate, suspend or reduce does give discretion as to how much a cohabitation will change alimony, the Judges do not have discretion in whether or not to make some change because the language begins with "General term alimony shall be..."

Does the court consider tax consequences in a divorce?

noreply@blogger.com (Justin Kelsey) — Thu, 04 Apr 2013 16:55:00 +0000

As the income tax filing deadline approaches, we are all wondering how we can reduce our income tax bill and increase our refund. Anyone who is considering divorce, going through a divorce, or has been divorced should consider how their divorce case could affect that tax bill.

We previously posted a series on Divorce & Taxes including the following topics:

Divorce and Taxes: Issue #1. Marital Status

Divorce & Taxes - Issue #2. Child Support v. Alimony

Divorce and Taxes: Issue #3. Child Dependency Exemptions.

Divorce and Taxes: Issue #4. Property Transfers.

Divorce and Taxes: Issue #5. Joint Tax Liability.

Divorce and Taxes: Issue #6. Same Sex Marriages.

Whenever any of these issues arise in a case, it is imperative that divorcing spouses and their counsel consider the tax consequences when negotiating a settlement.

In a recent opinion, the Massachusetts SJC confirmed the importance of considering income tax consequences of divorce orders and specifically ordered that a Judge, even when applying their broad discretion, must consider the potential impact of taxes on the divorce settlement. In L.J.S. v.s. J.E.S. the SJC remanded a Judge's alimony decision finding that the Judge erred by not considering the potential Federal tax consequences.

For practitioners and parties, this decision underlines the importance of getting proper tax advice during your divorce case or negotiation. The Judge must consider the impact of taxation on your settlement, but the Judge won't know unless you present the evidence of what that tax impact will be.

How can the DOR help collect child support?

noreply@blogger.com (Justin Kelsey) — Fri, 29 Mar 2013 21:13:00 +0000

You may have seen that the latest New Jersey Powerball Winner who won $338,000,000 owes $29,000 in child support. If the mother who is owed child support was using the state government to help her collect that support, then that child support amount will likely be deducted from the winnings before he even receives them.

This is just one reason that you might want the state to assist you in collecting your child support, especially if there are arrears. In Massachusetts, the agency that oversees the collection of child support is called the Massachusetts Department of Revenue (DOR) Child Support Enforcement (CSE) Division. The DOR CSE receives a copy of every child support order in Massachusetts, and when the order is created the child support recipient must decide if they want DOR to collect the child support from the payor.

In many cases, recipients simply choose to have the amounts paid directly, and only involve DOR if there is a problem. However, every recipient has the right to request DOR assistance from the beginning of their case. If the payor is employed, then DOR sends an order to the employer and collects the child support directly from the payor's paycheck. The downside to using DOR is that the payment will then typically be delayed one to two weeks before it reaches the recipient. The upside is that DOR is tracking the payments and the payor has no control over when payment is made since it is taken directly from their pay.

In addition, the DOR has other powers to collect child support when a payor falls behind or is unemployed. For example, DOR can divert tax refunds to pay overdue child support, can collect interest on arrears, and as in the case of the powerball winner, can take lottery winnings as well.

In addition, DOR may file Contempt or Modification complaints on behalf of some clients. While the DOR complaints are generally much slower than using an attorney, it is a viable alternative for those who cannot afford counsel and may not be comfortable navigating the court paperwork alone.

For more information about DOR/CSE in Massachusetts visit their webpage here.

Or click here to find more information about child support generally in Massachusetts.

Who pays the child's uninsured medical expenses in a divorce?

noreply@blogger.com (Kelsey & Trask, P.C.) — Tue, 05 Mar 2013 17:56:00 +0000

While it is often typical for couples to agree to split the uninsured medical expenses in a divorce case, the Massachusetts Child Support Guidelines actually suggest a slightly different approach:

"3) Routine Uninsured Medical and Dental Expenses: The Recipient shall be responsible for payment of the first $250 each year in combined routine uninsured health and dental/vision expenses for all the children covered by this order. For amounts above that limit, at the time of entry of establishing or modifying the support order, the Court shall allocate expenses between the parties without adjustment to the child support order.

4) Uninsured Extraordinary Medical and Dental Expenses:The payment of uninsured extraordinary medical and dental expenses incurred for the children, absent agreement of the parties, shall be treated on a casebycase basis. (Example: orthodontia, psychological/psychiatric counseling, etc.) Where the Court makes a determination that such medical and dental services are necessary and are in the best interests of the child(ren), the Court shall allocate such expenses between the parties."

Routine costs typically include copays, prescriptions and other regular expenses which are not covered by insurance. One rationale behind requiring the child support recipient to pay the first $250 per year is that for many children routine costs won't exceed that amount, and reimbursement issues between parents is therefore minimized but only up to a reasonable cap.

Of course, parties have the right to deviate from the guidelines and many will agree to simply split these expenses equally. However, a recent Massachusetts Appeals Court decision suggests that the Judge cannot vary from this approach without making specific findings of fact. In Murphy v. Murphy 11-P-1032 - (2012) the appeals court overturned the trial court's order that the Father should pay 100% of the uninsured medical expenses because there were no findings as to why the court deviated from the guidelines.

As a practice tip if you are suggesting that the court deviate from the guidelines, provide the Judge with a clear proposed Findings of Fact stating why that deviation is justified.

DOMA Creates Problems for Second Marriages

noreply@blogger.com (Justin Kelsey) — Wed, 13 Feb 2013 16:11:00 +0000

Often poorly written legislation has unintended consequences. DOMA (the so-called Defense of Marriage Act) allows states to ignore marriages from other states or countries, when those marriages are between two people of the same gender. We've previously written about the problems that this can cause in same-sex divorces: Same-Sex Marriage is Getting Easier, But Same-Sex Divorce is still Tricky. But the problems don't just end there.

Since some states won't allow you get divorced from a same-sex marriage, residents of those states have been told that they are essentially not married. Does this mean that they can re-marry in that state? The answer is yes, but not without potential consequences.

To illustrate the risks, consider the following hypothetical scenario:

Jane Smith and Janet Doe have been living together for years in Texas. They have friends in Massachusetts and when they heard about the ballot initiative in Maine to legalize same-sex marriage they decided to move to New England and be a part of that political movement. They lived in Massachusetts for a year and got married in Massachusetts while traveling to Maine often to be involved in protests. After the Maine initiative passed, Jane wanted to continue protesting in other states, but Janet wanted to settled down somewhere and start a family. Realizing they had different goals Jane and Janet separated. Jane moved back to Texas. After a particularly bad winter storm, Janet decided Massachusetts wasn't for her and she moved to Florida.

While living in Texas Jane fell in love with John Lee, and they are now engaged. Jane has been told that Texas doesn't recognize her same-sex Massachusetts marriage and she is free to marry John in Texas. Jane and John get married without Jane dissolving her first marriage.

What happens if DOMA is repealed?

If DOMA is repealed then states like Texas are going to be required to recognize out-of-state marriages even if they are same-sex marriages. At that point Jane will have two marriages recognized by Texas law. This could possibly make her second marriage void. It also might create a violation of the bigamy laws in Texas, because Jane will be married to two people and still living with her second spouse.

What happens if Jane and John move to a state that recognizes same-sex marriages, like Maine?

A state like Maine which allows same-sex marriage would recognize the original marriage. At that point Jane will have two marriages recognized by her state of residence. This could possibly make her second marriage void. It also might create a violation of the bigamy laws in Maine, because Jane will be married to two people and still living with her second spouse.

How can Jane avoid these problems?

Since Jane and Janet last lived together in Massachusetts, they can file for divorce in Massachusetts and dissolve the first marriage. Once complete this will allow Jane to remarry without having to worry about the consequences.

However, if we change one fact in this hypothetical another problem arises. If Jane and Janet didn't move to Massachusetts but just traveled there to get married while remaining residents of Texas, then they are are married in any state that recognizes same-sex marriage. However, they cannot get divorced in Massachusetts because neither is a resident and they never lived together in Massachusetts. This means that Jane can't give divorced without moving to a state that recognizes same-sex marriages long enough to meet the residency requirements.

In this scenario, Jane can't get divorced and she shouldn't get re-married without getting divorced first. Was it the intention of DOMA's drafters to prevent marriages between opposite-sex couples in their states? Probably not, however, often poorly written legislation has unintended consequences.

Joint Petition for Modification: A Proposal for an Expanded & Simplified Procedure

noreply@blogger.com (Kelsey & Trask, P.C.) — Tue, 05 Feb 2013 14:32:00 +0000

Massachusetts Supplemental Probate and Family Court Rule 412 currently allows for the filing of a Joint Petition for Modification of Child Support when two parents agree that the child support figure should be amended. Often when there has been a material change in circumstances, two parents can agree that the child support should change to reflect the new circumstances. If the new agreement can be reduced to a writing, then it can be submitted to the court with a Joint Petition under Rule 412, and the court may approve it without requiring a hearing (although the court may schedule a hearing if they have questions about the agreement).

The obvious benefit to this joint petition process is avoiding the cost and stress of unnecessary trips to court when an agreement is reached between the parties. When parties can't agree on whether child support should change or not, then a Complaint for Modification may still be necessary. However with more and more parties trying to save money and stress by turning to mediation and collaborative law, even post-judgment disagreements are often resolved outside of court.

The problem with Rule 412 is that it is limited to child support changes. If parties agree to changes which involve custody, alimony or other modifiable issues, the court doesn't currently allow a Joint Petition to be filed. This means that even in cases with a full Agreement for Modification, a Complaint still needs to be filed, served and then presented at a hearing. This results in unnecessary cost and stress and discourages parties from reaching agreements, which is why the court is considering making changes:

Proposed Amendments to Rule 412 of the Supplemental Rules of the Probate and Family Court

The proposed amendments expand the Joint Petition option to cover any judgment or order in the family court. This would allow for the same stream-lined process if a couple agrees to modify alimony, medical insurance, parenting plans, or any other such order or judgment. The court still reserves the right to require a hearing, and in many cases this may be necessary to clarify for Judges why the changes are being made, especially in cases where agreements may be unclear.

However, with well written agreements, this new process will open up many cases to be handled without a court appearance, and encourage parties to use mediation and collaborative law options more often for post-judgment negotiations. Overall, this could mean a reduction in the number of court cases and reduced stress and cost for many families.

The new provisions would still exclude 209A restraining order cases from the Joint Modification provisions. This means that a hearing would still be required for changes to orders or judgments in restraining order cases, even under the new Rule.

According to the Press Release: comments on the proposed amendments should be directed to the Probate and Family Court Bench/Bar Committee on Rules, c/o Evelyn Patsos, Esq., and sent via facsimile to (617) 788-6605 or by email to evelyn.patsos@jud.state.ma.us on or before Friday, February 15, 2013.

What can Star Trek teach us about Collaborative Divorce?

noreply@blogger.com (Kelsey & Trask, P.C.) — Wed, 30 Jan 2013 17:47:00 +0000

Image from Wikipedia

Two of my favorite articles regarding leadership were written by Alex Knapp of Forbes: Five Leadership Lessons From James T. Kirk; and Five Leadership Lessons From Jean-Luc Picard. While both captains were very different leaders, and each definitely has their own devoted cult following, there were still similarities in how they led. For example, Alex points out that Captain Kirk surrounded himself with advisors who had different world views, and that Captain Picard was willing to ask for help when he needed it (whether from advisors or even sometimes from his opponents).

What can these leadership qualities teach us about Collaborative Divorce?

Ultimately when we are assisting divorcing couples, whether through the court process or through negotiation, we are leading them through a complicated and emotional process. As leaders in this role we should be considering what types of leaders we want to be. Particularly in Collaborative Divorce where the process is designed to model better communication for the divorcing couple, we are leading these couples through each step of the divorce process as a team. The collaborative attorney is still the leader on legal issues, but we also involve a collaborative coach to help lead the emotional discussions and guide communication, and a financial expert to help lead the financial planning and summary.

Often attorneys have difficulty letting go of some of their power in these roles, and in fact many attorneys (even those who have been Collaboratively trained) refuse to involve coaches in their cases. But this choice assumes that we can lead a divorce case without any help. Just like Captains Kirk and Picard, attorneys need to recognize that sometimes we need help. In order to effectively lead divorce clients through emotional and financial issues we should make use of the right advisors for these roles.

Does good leadership require the use of advisors?

Ever since Netflix Instant watch obtained all of the Star Trek television episodes, I have been re-watching both the Original Series (TOS) and The Next Generation (TNG). Despite the fact that my wife is still resistant to liking Star Trek, she has been watching it with me and, of course, commenting on various observations including how ridiculous both shows look today. We also recently discussed one of the striking differences between the two series: the presence of Deanna Troi, ship's counselor, on the bridge.

While Captain Kirk had Spock and Dr. McCoy as his trusted advisors, TNG took the concept one step further by having a mental health practitioner as an advisor, and a woman no less. While Dr. McCoy was quick to point out that his skills were mainly as a doctor, damn-it, he was still a commissioned officer and a very masculine perspective. Captain Picard, however, constantly asks for advice from a woman who isn't an officer (at least not until later episodes) and who is so focused specifically on the emotional side of negotiation that she literally feels the emotions of those around her.

In the same way that Star Trek evolved to recognize the importance of emotions and the female perspective in leadership decision making and negotiation, the process of getting divorced must evolve as well. There is no negotiation that is more likely to involve strong emotions and feelings than a divorce case. So why do lawyers think they can guide clients through that minefield without help?

In my experience, many lawyers will try to avoid the emotional issues by simply recommending that their clients also see a therapist. That disconnects the legal process from the emotional one, and as any good negotiator will tell you, it is not possible to fully disconnect one's emotional and rational interests in a negotiation. Indeed, having and facing the conflicts that happen in a divorce case can often be an integral part of finding solutions. This is a concept explored in a lecture from Collaborative attorney, Neil Denny, about How to Enable Conflict.

Since lawyers aren't trained to enable conflict, or manage communication and emotions, the Collaborative process is designed to bring an expert in those fields to the table: the Coach. Divorce will get easier for clients when more lawyers realize the value of including a coach to advise clients on dealing with the emotional portion of conflict in real time, i.e. during the negotiation.

So if you are a spouse facing divorce, or a lawyer who helps clients through their divorce, the next time someone suggests using a coach or financial planner to help, don't think of it as a negative that the lawyer can't fill all those roles. Instead, picture yourself on the bridge of a starship, facing down a force that seems more powerful than you. Are you alone on that bridge? Or is your trusted advisor sitting in the chair next to you, helping you to be a better leader?

What does a Collaborative Law Financial Neutral Do?

noreply@blogger.com (Kelsey & Trask, P.C.) — Thu, 24 Jan 2013 15:00:00 +0000

Guest Post Introduction: Jessie L. Foster, CFP®, CDFA™, MBA is a Collaborative Law Financial Professional who works with clients and their attorneys to fully understand the financial complexities surrounding divorce. She offers comprehensive analysis of the short-term and long-term impacts of proposed divorce settlements that may impact clients and their families well beyond divorce. Ms. Foster serves as Chair of the Massachusetts Collaborative Law Council (MCLC), Members Meeting Committee and is a member of The International Academy of Collaborative Professionals, the Divorce Center and The Massachusetts Council of Family Mediation.

What does a Collaborative Law Financial Neutral Do?
By Jessie L. Foster, CFP®, CDFA™, MBA
Financial issues in divorce are complex and the decisions a couple makes as part of the divorce process may be some of the most important fiscal decisions they will make in their lifetime. On the Collaborative Divorce Team the financial professional is a neutral who works with both spouses and their attorneys. They help to answer questions such as:

Can I afford to keep the marital home?
Is it more tax efficient to pay/receive child support or spousal support?
What is the value of a pension and can you divide it?
How do we equalize our after tax income?

A Financial Neutral helps clients determine the short term and long term financial impact of any proposed divorce settlement. They will provide valuable information on financial issues that are related to the divorce, such as tax consequences, dividing retirement plans, continued health care coverage, stock option elections and much more. During negotiations, a Financial Neutral can assess the budgetary and tax impact of spousal and child support. They will prepare schedules that project cash flows, net worth, and tax effects of proposed settlements. Putting that information in language you can understand helps you take the next steps. If one spouse is less financially savvy, a Financial Neutral may be asked to educate one or both spouses to keep negotiations on an equal footing.

Often times, negotiations break down because of financial issues and can lead to litigation. A Financial Neutral can help to provide a thorough financial picture and show realistic solutions that set a positive tone for productive discussions, thus allowing the collaborative process to move forward more efficiently and cost effective.

Everyone’s financial needs and goals are different. Every divorce is unique. A Financial Neutral can help guide decision-making and problem-solving on one or more of the financial issues related to your divorce, including:

Tax issues Property division
Health care insurance
Retirement and pension plans
Social security
Property and business interests
Cash flow analysis
Budget analysis
Lifestyle/living expense analysis
Credits and reimbursements
Debt pay-off

Life Insurance
Employee benefits
Children’s education/special needs
Separate vs. marital property
Spousal and child support
Recalculate support per agreement
or change in circumstances
Stock options
Separate property claims
Sell vs. keep personal residence

Divorce is a highly emotional process that has legal and financial ramifications that can be devastating. But with proper planning and expert help from professionals specializing in collaborative resolutions, you can increase your chances of arriving at a settlement that is financially equitable.

The Violence Against Women Act: What is it and why should Congress renew it?

noreply@blogger.com (Kelsey & Trask, P.C.) — Tue, 08 Jan 2013 21:26:00 +0000

In 1994, the United States Congress enacted the Violence Against Women Act, which was the first U.S. federal legislation criminalizing domestic violence and sexual assault, and assigned federal resources to combat violence against women on a community level. It was reauthorized in 2000, and again in 2005 (read the text of the 2005 version). The 2005 version which recently expired, also addressed dating violence and stalking, expanded services to include children and teenagers, and established funding for rape crisis centers.

Since this legislation was recently allowed to expire by Congress, it's important that you know what we are losing and why it was allowed to expire. If after reading about the benefits of this Act and the reasoning for letting it expire you think Congress made a mistake by not renewing the Violence Against Women Act, then we encourage you to contact your representatives and tell them your opinion.

The Violence Against Women Act - What it Does:

The Violence Against Women Act aims to reduce violence and the impacts of violence through the funding of services and through the criminalization, on the federal level, of such acts.

The criminal provisions include strengthening federal penalties for repeat sex offenders and a number of provisions intended to reduce the impact of the criminal justice system on victims. The provisions that favor the rights of victims include requiring recognition of protective orders across state borders, prohibiting charging victims for rape exams or the service of protective orders, and the creation of a federal "rape shield law." Rape shield laws prevent defendants from using the sexual history of victims against them at rape trials.

Since rape is often unreported, these types of victim protections are necessary to encourage victims to participate in the prosecution of these crimes and to simultaneously reduce the continuing impact that this violence has on the life of the victims.

Part of the funding provisions also relate directly to criminal enforcement. The Act funds training for police, prosecutors and judges so that they understand the impact and realities of domestic and sexual violence, and helps fund dedicated units for enforcement and prosecution of these crimes. Without these additional resources many law enforcement and prosecution units will not be able to make arrests and properly prosecute these crimes in a timely manner.

In addition, the Act funds services which directly impact victims. For example, the Act established and provides funding for the National Domestic Violence Hotline, which handles over 22,000 calls per month.

The Violence Against Women Act - How has it Helped:

In addition to the significant number of victims and potential victims served by the hotline, the Act has helped any victim who was protected by criminal justice provisions both at the federal and state level since 1994. The Act has led to the reform of laws in all states relating to domestic and sexual violence, stalking, and criminal violations for violations of protective orders. In Massachusetts, these laws and resources are summarized on the Massachusetts Trial Court Law Libraries page.

Statistically since the enactment of the Act, there have been lower rates of domestic violence (a 67% reduction in intimate partner violence from 1993 to 2010). This has also resulted in a reduction in intimate partner homicides (a 35% decrease in the murder of women and 46% reduction in the murder of men from 1993 to 2007).

But statistics don't tell the whole story. Every act of violence that didn't occur because of the training and funding provided by the Act is a victim whose life is immeasurably improved. And every victim who experience an improved and more effective criminal justice system, is one more victim whose trauma was reduced.

The Violence Against Women Act - Why did it Expire:

So you might be asking yourself, who would be against these improvements in the life of victims and potential victims?

In April 2012, the U.S. Senate voted to reauthorize the Act. However, the House of Representatives passed an amended version which omitted certain provisions of the Senate version. The Senate bill included provisions that would extend the protections of the Act to include members of the LGBT community, Native Americans living on reservations, and illegal immigrants. The House (primarily the Republican representatives) essentially forced the expiration of the Act by refusing to compromise on these provisions.

On the one hand, you might wonder why the Act couldn't be renewed without these provisions and then these portions fought out separately. On the other hand, you might also wonder what's objectionable about adding protections for traditionally under-served groups (rates of violence amount the LGBT community, Native Americans, and illegal immigrants are all higher than the rest of the population, and all less likely to be prosecuted).

At the end of the day, the most troubling of all is Congress playing chicken with itself over such an important and impactful issue. A Congress that was dedicated to protecting families, children, and victims would not let this Act expire.

If you're as outraged as we are, then tell your representatives that you favor protecting women and families and children, regardless of where they live, or how they got here, or who they live with. Contact your representatives and tell them that it's not okay for Congress to ignore victims.

What should have stayed in Vegas! - Real Life Hangover

noreply@blogger.com (Kelsey & Trask, P.C.) — Thu, 03 Jan 2013 17:55:00 +0000

In a recent opinion, in which the Massachusetts Appeals Court affirmed the trial court's divorce judgment, a very expensive bachelor party in Las Vegas turned into an even more expensive divorce.

In a marriage as short as Frank the Tank's marriage in Old School (and 21 days shorter than Kim Kardashian's second marriage), a physician ended up paying one year of alimony for a two month marriage.

The story-line of T.E. v. A.O is right out of the movies involving a husband who went to Las Vegas five days before his wedding in October 2008 and while there charged over $20,000 at a "men's club" and met a woman who he then began an intimate relationship with. Upon his return from Las Vegas, the parties were married on October 4, 2008 in a wedding that cost approximately $150,000. In clear violation of the Vegas marketing campaign, soon after the wedding, the wife learned of the extravagant Las Vegas charges and of the husband's ongoing relationship with the woman he met in Las Vegas. Ultimately this discovery led to the breakdown of their marriage and a trip to Massachusetts divorce court.

Prior to the Alimony Reform Act of 2011, alimony in Massachusetts was governed by M.G.L. c. 208 s. 34, which considered numerous factors in awarding alimony including conduct of the parties during the marriage. Although, in the case of T.E. v. A.O. the most significant conduct in the case occurred prior to the marriage (about 5 days before in Las Vegas), the trial court gave considerable weight to the effect this conduct had on the wife and the ongoing effect of the husband's relationship with the woman he met in Las Vegas. He eventually moved to California to be closer to her (and presumably farther away from his failed marriage).

In determining an appropriate division of assets and alimony in this very short-term marriage, the trial court judge stated that "[b]ut for the issue raised by [the] wife about her health, this would be an appropriate case to return each party to status quo ante by having them keep their separate assets and separate income." The Judge therefore ordered the husband to make a one-time payment of $29,500 accounting for moneys lost by the wife in selling her condo and other costs of separating, and one year of alimony at $2,100 per month.

The husband appealed claiming the Judge too heavily weighed the wife's health as a factor and the wife appealed claiming the Judge should not have limited the alimony to one year. The appeals court, not surprisingly, upheld the trial court's decision based on the great amount of discretion afforded the trial court by the property division and alimony statutes. While durational limits were often a problem under the old alimony statute, the court found that this limit was reasonable (and in light of the new statute where limits are more common, this is not surprising either).

Both parties also appealed the property division and were denied as well in the appeals court decision which was made on October 9, 2012 (four years after the initial indiscretion).

Here are just a few lessons, to take into the new year, that we think couples can learn from T.E. v. A.O.:

1. Even a two-month marriage can result in a four-year court battle if you choose litigation over other, better, forms of dispute resolution (such as mediation or collaborative law), and

2. Judges have broad discretion to make far-reaching decisions about your life in divorce cases, when you fail to settle those issues yourself, and

3. The Appeals Court often upholds that broad discretion, and

4. Spouses who leave their divorce decisions up to a Judge are often both unhappy with the result, and

5. Of course, What Happens in Vegas, really should Stay in Vegas.

Newtown Tragedy: Actions Speak Louder

noreply@blogger.com (Kelsey & Trask, P.C.) — Mon, 17 Dec 2012 20:55:00 +0000

These are the victims of the school shooting that occurred on the morning of Friday, December 14, 2012 at an elementary school in Newtown, Connecticut.

We have purposefully not included a link to a news story in this post because the news is concentrating on the details of the gunman's life. We believe that is a mistake. Here is the information that we believe is important and undisputed:

All of these victims deserved a longer life, and a better ending to their story.
This tragedy was preventable, and future tragedies like this are preventable.
Everyone of us has the ability to contribute in some way towards making our country a better place where violence like this is a history lesson instead of a headline.
The only way that we can take away the power of one bad man to write the ending for these victims, is to change that ending by recognizing our ability to contribute, and taking action.

We have all had three days now to voice our pain and outrage. As a country we must experience this grief and we must find a way to deal with it. Whether we individually grieve publicly or privately, we must accept that everyone will grieve these victims in their own way. If you have been on facebook or twitter this weekend, it is clear that many of us are experiencing anger or depression in reaction to these events. And while anger is a natural part of the grieving process, the direction of anger is not always rationally linked to the cause, which is why the anger of this weekend must give way eventually to acceptance.

But what does acceptance mean? Does it mean we should forget what happened? Does it mean we are powerless to prevent future tragedies?

NO.

Acceptance means that we must accept that we cannot change the past.

We cannot save the victims of Newtown.
But we can remember them.

We remember them by letting go our anger and depression, and by taking positive action for the future. Whether small or large, every action has a reaction. Here are just some of the ways that you can make a difference:

Remember the Heroes:

Numerous stories have emerged regarding teachers who protected their students on Friday morning, including at least one who gave her life doing so, Victoria Soto. These teachers were not trained to deal with gunfire. Their job description does not include saving lives by giving theirs. But they became heroes anyway. They stood up to violence and fear, and saved lives with their courage. Remember that sacrifice. Talk about it.

Make sure our children know that
everyday people can be Heroes.

Remember the Helpers:

Fred Rogers taught us that in any tragedy there is hope because you can always see the people who react and respond: the Helpers. Police officers, firefighters, nurses, doctors, paramedics, and more all put aside their personal fears and grief to help the victims and their families. Remember the importance of those people that choose to do those jobs, and who handled themselves professionally in a time of crisis. Nobody can change the past and these helpers couldn't save the victims, but they modeled for us the way in which we heal from tragedy. By helping the victims and their families they reduced the trauma those people experienced as much as was possible in the given situation. Remember the helpers, and strive to help where help is needed.

Be a Helper:

You can help the Newtown Victims by donating to a local non-profit.

Or you can help people in your community who are the victims of violence. The Mass.gov website has a list of resources for violence prevention and specifically for domestic violence prevention. These include both government resources that you can educate yourself about, and non-profit organizations that you can volunteer with or donate to.

Of course, these are just some of the ways that you can be a helper in Newton or your community to help protect others from violence.

Promote Gun Safety and Meaningful Debate:

Guns were a part of the Newtown tragedy and they must be a part of the discussion. But it is impossible to already know the solution before you completely understand the problem. Preventing future tragedies like Newtown requires more than signing a petition, or posting on social media that there are more gun deaths in the U.S. than in other countries. Supporters and opponents of private firearms ownership need to engage in meaningful communication to discuss solutions that protect both lives and liberties.

Like too many debates in this country, many would rather be polarizing in their statements and beliefs than learn from each other.

In Collaborative Divorces, we take two people who have every reason to distrust each other and we force them to talk about how they can work together to resolve their disputes. This requires effective communication about how each person feels and what their goals are. It is often uncomfortable, sad, angry, or frustrating. But the result is usually solutions that both people can rebuild their life from.

If divorcing spouses can having a meaningful conversation about solutions by using effective communication, then why can't people on opposite sides of the gun control debate?

Can we use 10 Tips for Better Collaborative Communication to have a meaningful discussion about gun control?

Calling someone a gun-nut violates #3. Assuming that gun control means they want to take away all your guns and institute a police state violates #10.

Prevention requires that we all grow up and learn how to communicate effectively. If you truly care that our country becomes a safer place, then take meaningful steps to make that happen:

Non gun owners need to recognize that they have something to learn from gun owners. Read the 10 tips, print them out, and then ask a gun owner to have lunch with you and have a conversation that abides by those tips. Ask them about their interest in firearms. Ask them how they think we can practically prevent gun violence. Ask them about the difference between a rifle, a shotgun and a handgun, and about the difference between a semi-automatic and an automatic weapon. Ask them why there are different types of firearms and different types of ammunition. Ask them about the proper way to store guns, and how to prevent unauthorized access. Ask them about regulations or restrictions that they would support vs. those they wouldn't, and why.

Listen to the answers.

Owners of firearms need to recognize that civilized society requires proper safety precautions to be respected or implemented around the ownership and use of potentially hazardous items. Read the 10 tips, print them out, and then ask a non gun owner to have lunch with you and have a conversation that abides by those tips. Ask them about why they don't have an interest in firearms. Ask them what, if anything, scares them about firearms. Ask them about what types of information would reduce their fears. Ask them how they think guns are similar or dissimilar to other potentially dangerous items or tools. Ask them about what types of regulations or restrictions could make them feel more safe.

Listen to the answers.

After having this conversation and actually listening to each other, try to agree on two things that either you individually or your government (whether municipal, state or federal) could do to help prevent future gun violence in any form. Write down those two agreements and then take action to make them happen. If your agreements involve something that the government can do, then contact the appropriate level of government and request that your representative take that action: Contact your Elected Officials

At the very least you can help yourself and your community by learning about the risk factors for gun violence, and gun safety at the following links:

Studies and articles regarding Gun Violence and Children.

Firearms Responsibility in the Home

Obtain a Safety Kit Cable Style Gun Lock

Take a course in Home Firearm Safety

Never stop learning, never stop asking questions, and never stop looking for solutions that honor the memories of the fallen.

A Tree Grows in your Office: A Metaphor for Divorce

noreply@blogger.com (Kelsey & Trask, P.C.) — Sat, 08 Dec 2012 18:07:00 +0000

We all know that to have a successful marriage, the relationship has to be nurtured and fed. Spouses who do not pay attention to the needs of their relationship are doomed to grow apart instead of growing together. But just because a marriage withers on the vine, doesn't mean that a divorce has to result in sour grapes.

Many of the problems that prevent people from having a successful divorce stem from the false assumption that divorce is an endpoint.

Divorce, like marriage, is a relationship. Anyone who has been through a divorce can dispel the notion that a divorce is just an event, begun one day and over the next. Divorce is a process, that takes time, requires patience, and still involves a relationship between spouses. And when spouses have children together, that relationship doesn't end when the divorce becomes final, it continues for graduations, weddings, grandchildren and more.

Divorce, like marriage, is a relationship.

Both at my firm and in many of the professional organizations I belong to, we are often searching for better ways to explain divorce to our clients. If you begin by asking questions, you learn a lot about the potential client, but they don't learn much about you. If you begin by trying to explain "processes" clients learn how they can get divorced, but not how to get divorced well. Maybe we need a new model, a story that explains how a potential client can get from the end of their marriage to the beginning of the next stage of their life.

That story, like many stories, starts with a seed.

Now you might think that a bitter pill would be a better metaphor for the end of a marriage, but trust me, a seed is better. Seeds have both a before and after, but you can't necessarily tell much about either of those places just by looking at the seed itself.

Many divorcing clients appear the same at the moment they enter my office, determined but a bit confused, having goals but also needing direction. Like a seed, their current state is the result of a relationship that came before. That relationship determines what kind of seed it is, but what the seed will grow into is not only controlled by its history. It also matters where that seed landed, and how it is nurtured.

The organic process of how divorce cases proceed from start to finish, is similar in many ways to the growth of a tree from a seed. Our goal is to develop a strong tree, able to withstand future storms. But growth and strength don't happen overnight. In fact, usually the process is too slow to be seen by the naked eye, but just because the process is slow doesn't mean the tree is standing still.

As one of my mentors used to say, settlement only happens when the case is ripe. Just like the organic growth of a tree, settlement requires the addition of necessary ingredients to blossom. A major component of settlement is time, but that's not enough. You may also have to shine light on parts of a client's life and marriage that they'd rather leave dark. But, in the end, the only way to wash away the dirt and create strength from vulnerability is to combine all of these elements to feed the next stages of life in a way that is balanced and leaves room for further growth.

And just as proper nurturing, light and time can lead to a healthy and strong future, ignoring any of these key elements leads to stunted growth. Proper counsel for divorce clients requires paying attention to these needs for our clients, and as corny as it sounds helping them choose what kind of tree they want to be, and where they want to grow.

Mediation is often represented as a single tree, or leaf. I'm not sure how so many mediators came to choose this as their symbol, but I think it fits. Mediation doesn't take place among the forest of other divorces, or in the public eye of court. Instead it takes place in the mediators office, away from other divorcing spouses and their situations.

A hallmark of mediation is about letting each set of clients come to a solution that they agree works best for their unique family. Though comparisons may happen when they leave the mediators office, mediation doesn't require a comparison to how other people grew their seed, it's only about those two people and how they want to resolve their problems.

When two spouses are both independent and have the ability to grow their strength from within, then they only need the gentle nurturing of a mediator to reach a successful divorce.

But sometimes, clients need more:

Collaborative Divorce is about seeing the forest through the trees. Similar to mediation, it takes place outside the public court forum. But it is different than mediation, in that each client is provided with more support to help them grow within the protection of a professional forest.

Collaborative divorce is often referred to as a team approach to divorce, but team implies everyone working together all of the time (and billing the clients for all that time). In reality, collaborative divorce is more like a set of gardening tools. Each tool or person has a role that helps the spouses grow the strength needed to support their own forest after divorce. Attorneys have different skills and training than coaches and financial planners. Each team members provides different nurturing, or strengthening skills to allow both spouses to grow together and coexist, even if they didn't start out in equal soil.

Collaborative divorce lends itself well to complicated issues, or imbalances that might prevent successful mediation because the interdisciplinary nature of the different professionals allows them to fulfill the needs of clients who wouldn't have been able to grow to the same heights on their own in a mediation. And since it also takes place far from the court house, the reflection of other groves doesn't block sunlight from this forest, allowing each tree to grow with only the restrictions they place on themselves.

But what if mediation and collaborative divorce are not options. Is all hope lost? Will my tree be cut down before it reaches it's full potential? I'm not going to lie; it's harder to find common ground in the court process. But that doesn't mean it's impossible:

Litigation takes place inside and outside of the courthouse. While litigation requires that you always track the shadow of the law, you don't have to let it block out all the light.

Court is not an organic process. It feels as unnatural as the sound-proofed walls that lined the courtrooms. The litigation process is designed to collect and reflect enough of the natural light of your family, to allow you to survive, but not necessarily thrive. Like a plant that's kept inside, it's not your natural environment, but with the right help it won't kill you. Your growth will be restricted based on the rules of the court, and still might result in settlement but you will have to work harder to make that happen.

In some ways this means that the attorney you choose to help you in court is even more important than who you might choose for mediation or collaborative divorce. If you choose a litigator who only knows the path to trial, then you will most certainly be firmly rooted in that path, and will have to take your chances with the Judge. But if you choose a lawyer with the experience and drive to settle cases, they then will help you see the many paths that exist, even when you're limited to a particular landscape. It might be harder to get settlement to ripen in the harsh unnatural light of court, but if the case is nurtured and prepared properly it is still possible.

Sustainable Growth

If you'll allow me one final stretch of the metaphor, remember that personal growth does not end at the end of a marriage, nor does it end when a client receives their Judgment of Divorce absolute. Proper care of a case requires consideration of how future growth will be supported, whether it can be made self-sustaining and whether the path you've provided will allow for sustainable growth for both the clients and their seeds.

Divorce is not an easy or happy subject, but like any transition in life it can be viewed as an end or a beginning. Ending cases shouldn't be the goal. The goal should be helping clients understand how to stretch their branches towards the light of better days.

How to explain the new Domesticated Animal Restraining Order provisions to your pet!

noreply@blogger.com (Kelsey & Trask, P.C.) — Mon, 05 Nov 2012 22:31:00 +0000

On October 31, 2012, a new statute took effect in Massachusetts adding protection for domesticated animals in restraining order cases. This does not mean that you can obtain a restraining order for your puppy from that feisty dog next door. The new provisions only allow for a court order relating to the possession, care and protection of a pet when a temporary or permanent vacate, stay away, restraining or no contact order is already in effect or has been requested. In simpler terms: this new law allows custody orders and protection orders for pets to protect them from the abusers of their human owners.

So what do you do when your pet asks you how this new law affects them? We've provided some helpful answers to make that conversation go more smoothly:

"Super Awesome Best Friend, how can I help protect you from that angry guy?"

"That's not something you have to worry about anymore. The court provided me with an order that prevents him from coming near our home. I also filed a new form that made sure that the court included you in that order. The court ordered that you will continue to live with me and that he can't abuse or threaten either of us. "

These additional orders can protect pets by assigning their care and protection to the Plaintiff and by ordering the Defendant to refrain from abusing, threatening, transferring or otherwise disposing of a domesticated animal.

"My plot to scare away that crazy woman by showing her a disemboweled chipmunk was clearly successful. You're welcome!"

"Okay, that's not really a question, but you just reminded me that I didn't ask for protection for you when I obtained my restraining order. Although I know you can protect yourself, I remember recently that she threatened you after that chipmunk stunt. Tomorrow I'll go down and file a request to add protection for you to the restraining order."

A request doesn't have to be filed with the original restraining order but can be filed afterwards when an order is already in effect.

"Will this new law help protect me from sharks?"

Unfortunately, the statute is not for use on its own to protect animals from potential abuse or being eaten by other animals. If someone you are in a relationship with ever tries to feed your fish to the sharks, then you may be able to get the court's help to protect them. However, unless your fish is particularly valuable, it is unlikely the court will take the abuse or custody of a fish seriously. Try explaining that to your pet fish, though, am I right? Unless you're best friends with Aquaman, you may just need to change the subject. In a few seconds, the fish will just forget they asked anyway.

"I heard the fish weren't safe, but what about me?"

"The statute does not define "domesticated animals." Since you are so cute and cuddly, I'm sure the Judge would want to ensure that you were protected from any abuse."

Of course that's just speculation, and the reality is that it is impossible to tell where Judges will draw the line on this new law.

While the goal of protecting animals from abuse is a lofty one, it seems a little absurd to think about protecting pets as a priority when domestic violence is such a serious danger to the human victims. While we hope every victim's pet is safe from abuse, we also hope that no victims are left unheard because a court docket is clogged with pet custody issues.

What should you tell your child about your Evil Ex?

noreply@blogger.com (Kelsey & Trask, P.C.) — Wed, 31 Oct 2012 14:12:00 +0000

Showtimes for Phineas and Ferb

My oldest daughter and I have found a TV show that we both can agree on: Disney's Phineas and Ferb (new episodes Fridays on Disney Channel, and available on Netflix Instant Watch). The basic plot of the show is that two boys, Phineas and Ferb, create an unbelievable invention in each episode and have an adventure, while their older sister, Candace, tries to catch them in the act of doing something dangerous. There is a side plot in most episodes involving their pet platypus, Perry, who also happens to be a secret agent foiling the plot of Dr. Doofenshmirtz, an inept evil scientist.

Dr. Doofenshmirtz
(as seen in Phineas and Ferb)

The reason the show also appeals to adults is that the characters are well rounded and experience everyday situations in addition to the incredible plot adventures. In the episode I Scream, You Scream, for instance, we find out that Dr. Doofenshmirtz has an ex-wife, Charlene Doofenshmirtz, and a daughter, Vanessa Doofenshmirtz. Vanessa is a teenager who doesn't enjoy spending time with her father and would rather be with her friends (shockingly typical). In this episode she tries to explain to her mother that her father is evil and is always trying evil schemes while she is with him (admittedly a little less typical).

Vanessa is in fact right and Dr. Doofenshmirtz, although inept, is evil. However, Charlene, Vanessa's mother, assures her daughter that her father is not evil. This episode proceeds with an attempt by Vanessa to get her father busted for being evil, while at the same time Candace is trying to bust Phineas and Ferb for their latest adventure. Of course, they both fail.

But when Vanessa fails to have her mom catch her dad in one of his evil schemes, I was left wondering whether her mom already knew. If Charlene and Dr. Doofenshmirtz were married surely she would be aware of his evil schemes. In fact those schemes, and all the money he must spend on them, were probably the basis for their divorce. Why would she pretend not to know and assure her daughter that her father wasn't evil?

As a divorce practitioner, I have experience working with couples trying to co-parent and have heard all kinds of stories about "evil exes". However, in every case involving children I always give the same advice regarding what to tell the children. Tell them simply that both of their parents love them, and they will both continue to be involved in their lives. I tell my clients to "Say only nice things about your ex to your children, even when you don't believe them to be true."

Children's identities are tied to both of their parents. As part of growing up we eventually learn of our parent's fallibility and mortality, and those are difficult lessons because they force us to face those same traits in ourselves. For children of divorcing and divorced parents, they are forced to learn that their parents (and therefore themselves) can fail at relationships. This is why children grieve the marriage just as adults do, even though they grieve it in different ways.

If you also insult or tear down that child's other parent, you are forcing them to experience even greater loss and doubt during an already difficult time. Any action that damages a child's opinion about their parent, also damages that child's own self-esteem, especially at a time when they are already vulnerable to doubt and confusion about their identity.

Wanting your children to be healthy and self-confident, therefore, requires building their confidence in both you and your ex. In the episode I described above, Charlene could have agreed with Vanessa that her father was evil, or at the very least quite weird. In fact, it probably would have been more honest. But instead she tells Vanessa "your father isn't evil, we just didn't get along. We wanted different things." She doesn't explain further, she simply insists that Vanessa still spend the weekend with her father.

One of the things I enjoy about Pheneas and Ferb is how well the show models behavior for children. Phineas is always upbeat, creative, inventive and whenever someone is rude to him he responds with kindness. I guess I shouldn't be surprised to see the show model such great behavior for adults as well. Many divorcing parents could learn from Charlene Doofenshmirtz's example.

Where do the candidates stand on DOMA?

noreply@blogger.com (Kelsey & Trask, P.C.) — Tue, 30 Oct 2012 00:25:00 +0000

The Defense of Marriage Act (DOMA) has been held unconstitutional by both the 1st and 2nd U.S. Circuit Courts of Appeals. While we wait to see whether the Supreme Court will review these cases, you may have heard that there is an election coming up. Whether or not the Supreme Court overturns DOMA, congress has the authority to repeal the Act if they so chose. Since the major party presidential debates ignored this issue, you may not be fully aware of the party platforms on this issue.

Each of the following parties has a presidential candidate running for president in 2012, and below we have excerpted their platforms' references to DOMA, same-sex marriage, and discrimination based on sexual orientation (click the links to read the entire platform):

2012 Republican Party Platform excerpts:

"Defending Marriage Against An Activist Judiciary
A serious threat to our country’s constitutional order, perhaps even more dangerous than presidential malfeasance, is an activist judiciary, in which some judges usurp the powers reserved to other branches of government. A blatant example has been the court-ordered redefinition of marriage in several States. This is more than a matter of warring legal concepts and ideals. It is an assault on the foundations of our society, challenging the institution which, for thousands of years in virtually every civilization, has been entrusted with the rearing of children and the transmission of cultural values.

A Sacred Contract: Defense of Marriage

That is why Congressional Republicans took the lead in enacting the Defense of Marriage Act, affirming the right of States and the federal government not to recognize same-sex relationships licensed in other jurisdictions. The current Administration’s open defiance of this constitutional principle—in its handling of immigration cases, in federal personnel benefits, in allowing a same-sex marriage at a military base, and in refusing to defend DOMA in the courts— makes a mockery of the President’s inaugural oath. We commend the United States House of Representatives and State Attorneys General who have defended these laws when they have been attacked in the courts. We reaffirm our support for a Constitutional amendment defining marriage as the union of one man and one woman. We applaud the citizens of the majority of States which have enshrined in their constitutions the traditional concept of marriage, and we support the campaigns underway in several other States to do so."

2012 Democratic Party Platform excerpts:

"Freedom to Marry. We support the right of all families to have equal respect, responsibilities, and protections under the law. We support marriage equality and support the movement to secure equal treatment under law for same-sex couples. We also support the freedom of churches and religious entities to decide how to administer marriage as a religious sacrament without government interference.

We oppose discriminatory federal and state constitutional amendments and other attempts to deny equal protection of the laws to committed same-sex couples who seek the same respect and responsibilities as other married couples. We support the full repeal of the so-called Defense of Marriage Act and the passage of the Respect for Marriage Act.

Gay Rights as Human Rights. Recognizing that gay rights are human rights, the President and his administration have vowed to actively combat efforts by other nations that criminalize homosexual conduct or ignore abuse. Under the Obama administration, American diplomats must raise the issue wherever harassment or abuse arises, and they are required to record it in the State Department's annual report on human rights. And the State Department is funding a program that finances gay rights organizations to combat discrimination, violence, and other abuses. "

2012 Green Party Platform excerpt:

"5. Sexual Orientation and Gender Identity

In keeping with the Green Key Values of diversity, social justice and feminism, we support full legal and political equality for all persons, regardless of sex, gender, sexual orientation, or gender identity, characteristics, and expression.

a. The Green Party affirms the rights of all individuals to freely choose intimate partners, regardless of their sex, gender, gender identity, or sexual orientation.

b. The Green Party recognizes the equal rights of persons who identify as gay, lesbian, bisexual, intersex, transsexual, queer, or transgender to housing, jobs, civil marriage, medical benefits, child custody, and in all areas of life including equal tax treatment.

c. The Green Party will be inclusive of language in local, state and federal anti-discrimination law that ensures the rights of intersex individuals and prohibits discrimination based on gender identity, characteristics, and expression as well as on sex, gender, or sexual orientation. We are opposed to intersex genital mutilation.

d. The Green Party affirms the right of all persons to self-determination with regard to gender identity and sex. We therefore support the right of intersex and transgender individuals to be free from coercion and involuntary assignment of gender or sex. We affirm the right of access to medical and surgical treatment for assignment or reassignment of gender or sex, based on informed consent.

e. We will pursue legislation against all forms of hate crimes, including those directed against people who identify as lesbian, gay, bisexual, queer, transgender, and intersex. Offenders must pay compensation to the LGBTIQ people who have suffered violence and injustice.

f. The Green Party will end all Federal military and civilian aid to national governments whose laws result in the imprisonment or otherwise bring harm to citizens and residents based on sexual orientation, or gender identity, characteristics, and expression.

g. The Green Party will enact a policy that the U.S. Government recognize all international marriages and legal equivalents, such as civil unions, in processing visitor and immigration Visas.

h. The Green Party would repeal don't ask don't tell, abolish security clearances denied on the basis of sexual orientation and/or gender identity, and supports the rights of defense personnel and volunteers to serve their country openly without penalty irrespective of sex, sexual orientation, and gender identity.

i. The Green Party would end security surveillance and covert infiltration of organizations that promote equal rights on the basis of sexual orientation and gender identity."

2012 Libertarian Party Platform excerpt:

"1.3 Personal Relationships

Sexual orientation, preference, gender, or gender identity should have no impact on the government's treatment of individuals, such as in current marriage, child custody, adoption, immigration or military service laws. Government does not have the authority to define, license or restrict personal relationships. Consenting adults should be free to choose their own sexual practices and personal relationships.

3.5 Rights and Discrimination

Libertarians embrace the concept that all people are born with certain inherent rights. We reject the idea that a natural right can ever impose an obligation upon others to fulfill that "right." We condemn bigotry as irrational and repugnant. Government should neither deny nor abridge any individual's human right based upon sex, wealth, ethnicity, creed, age, national origin, personal habits, political preference or sexual orientation. Parents, or other guardians, have the right to raise their children according to their own standards and beliefs. This statement shall not be construed to condone child abuse or neglect."

2012 Justice Party Platform excerpt:

"• End discrimination based on race, gender and sexual orientation
• Support marriage equality"

2012 Constitution Party Platform excerpt:

"Family

No civil government may legitimately authorize or define marriage or family relations, as affirmed by the 10th amendment, delegating to the people as our founders understood the family as necessary to the general welfare.

We affirm the importance of Biblical scripture in the founders’ intent as eloquently stated by Noah Webster: “The moral principles and precepts contained in the Scriptures ought to form the basis of all our civil constitution and laws… All the miseries and evils which men suffer from vice, crime, ambition, injustice, oppression, slavery, and war proceed from their despising or neglecting the precepts in the Bible.”

The law of our Creator defines marriage as the union between one man and one woman. The marriage covenant is the foundation of the family, and the family is fundamental in the maintenance of a stable, healthy and prosperous social order. No government may legitimately authorize or define marriage or family relations contrary to what God has instituted. We are opposed to any judicial ruling or amending the U.S. Constitution or any state constitution re-defining marriage with any definition other than the Biblical standard.

We call for an end to all taxation and economic formulas that discourage marriage, incentivize co-habitation and child bearing outside of marriage or authorize or provide government funding for policies and programs that further erode the jurisdiction of the family or parental rights.

We reject the notion that homosexuals, transgenders or those who are sexually deviant are deserving of legal favor or special protection, and affirm the rights of states and localities to proscribe offensive sexual behavior. We oppose all efforts to impose a new sexual legal order through any courts or legislatures. We stand against so-called "sexual orientation" and "hate crime" statutes that attempt to legitimize inappropriate sexual behavior or stifle public opposition to its expression. We oppose government funding of "partner" benefits for unmarried individuals. Finally, we oppose any legal recognition of homosexual or civil unions.

We recognize that parents have the fundamental right and responsibility to nurture, educate, and discipline their children. We oppose the assumption of any of these responsibilities by any governmental agency without the express delegation of the parents or legal due process. We affirm the value of the father and the mother in the home, and we oppose efforts to legalize adoption of children by homosexual singles or couples."

When does 30 + 90 not equal 120? In Divorce Court!

noreply@blogger.com (Kelsey & Trask, P.C.) — Thu, 27 Sep 2012 19:07:00 +0000

As we covered in a previous post (What happens after my Divorce Agreement is approved by a Judge?), there is a 90-120 day waiting period after your divorce is allowed before it becomes final in Massachusetts. But that 90-120 day waiting period may not be exactly 90-120 days from your settlement date:

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 at least 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 at least 90 days after the divorce hearing date.

Since the statute (M.G.L. c. 208 s 21) simply calls for judgments to become final after the "expiration of ninety days", why would it take longer? Because the Court is not open on holidays and weekends, and this can affect the final effective date. In a Joint Petition this can also affect the date the Judgment actually issues as well, since it is thirty days after the hearing, and not the same day as the hearing as in a Complaint for Divorce.

To make sense of all this, it helps to view an example:

Assume that you file a Joint Petition for Divorce and your uncontested hearing date was on April Fools Day, Friday, April 1, 2011 (you may read into the choice of that date whatever you choose to).

Thirty days after April 1, 2011 was Sunday, May 1, 2011 (TIP: if you don't like counting on a calendar use Wolfram Alpha for quick date calculations). Since the court is not open on Sundays, the Judgment of Divorce Nisi in this case would have issued on Monday, May 2, 2011.

Now to calculate the Judgment of Divorce Absolute date, we would count 90 days after May 2, 2011, which results in Sunday, July 31, 2011. Again, the court isn't open on Sunday, so the date of Divorce Absolute shifts to Monday, August 1, 2011.

If you had simply added 120 days to April 1, 2011, you may have thought that your Divorce Absolute date was Saturday, July 30, 2011, when in fact the actual date was Monday, August 1, 2011. While you could still celebrate on the previous Saturday, the actual date does have a legal effect on certain issues (to read more on those issues read our previous post: What is the purpose of the Divorce Nisi waiting period?)

In this example 30 + 90 = 122. Welcome to math in the Divorce court!

Thanks to Robin Chaykin, Esq. of Fraser & Galanopoulos for bringing this discrepancy to our attention!

Divorce in Massachusetts: 5 Things You Need to Know to Get Started

noreply@blogger.com (Kelsey & Trask, P.C.) — Tue, 25 Sep 2012 14:00:00 +0000

There are five questions you will need to answer to get started with a divorce in Massachusetts:
1. CAN you file for divorce in Massachusetts?
2. WHY are you getting divorced?
3. HOW will you get divorced?
4. WHO can help you get divorced?
5. WHERE will you get divorced?

We answer each of these questions below:

1. CAN you file for divorce in Massachusetts?
If you have been a resident of Massachusetts for one year then you can file for divorce in Massachusetts. Even if you have not been a resident for one year, you still may be able to file for divorce in Massachusetts but it may be complicated to determine.

We created an infographic to clarify the confusing question of jurisdiction over a divorce case in Massachusetts by consolidating the statutes and case law into one chart available here: Can I file for divorce in Massachusetts? An Infographic.

Just because you can file for divorce in Massachusetts, however, does not necessarily mean the court has jurisdiction over all issues in your case, as we explain in greater detail here: Can I be sued for Divorce in Massachusetts if I don't live there but my spouse does?. If your case involves residency, property, or children living in multiple states, you should definitely consult with an attorney because these issues can present complicated determinations and possibly multiple court cases.

If you have determined that you can file in Massachusetts, you now have to answer:

2. WHY are you getting divorced?
There are three different statutes in Massachusetts that provide grounds upon which the Probate & Family Court can grant you a divorce.

The Fault Statute: M.G.L. ch. 208 § 1 authorizes the Courts in Massachusetts to grant divorces to residents of Massachusetts for a specific list of "fault" situations: adultery; impotence, desertion continued for one year; gross and confirmed habits of intoxication caused by voluntary and excessive use of intoxicating liquor, opium, or other drugs; cruel and abusive treatment; imprisonment; or, if a spouse being of sufficient ability, grossly or wantonly and cruelly refuses or neglects to provide suitable support and maintenance for the other spouse.

These are called "fault" divorces because obtaining a divorce for any of these reasons requires that you first prove that one spouse has caused the divorce by doing one of the things listed, i.e. it is "their fault" that the marriage has broken down. It is unusual under the current state of Massachusetts law to file for "fault" divorces because they require this extra evidence of fault before a divorce can be granted.

The No-Fault Statutes: M.G.L. ch. 208 § 1A and M.G.L. ch. 208 § 1B authorize the Courts in Massachusetts to grant divorces to residents of Massachusetts for "an irretrievable breakdown of the marriage." The irretrievable breakdown standard simply requires that the Court find that at least one of the parties in the marriage believes (subjectively) that their marriage is over and that there is no chance of reconciliation.

If you are filing for a No-Fault Divorce (the most likely option) then you may not have to litigate your case. There are other (oftentimes better) options for:

3. HOW will you get divorced?
There are four paths you can take to get divorced: Direct Settlement Negotiation, Litigation, Mediation, or Collaborative Divorce. We created an infographic to help you visualize the different tracks you can take, and how you might end up moving from one track to the other (as well as some of the waypoints along the way): The Divorce Roller-Coaster: An Infographic of Options.

Each path has strengths and weaknesses and we examined some of these in the following posts:

Mediation, Collaborative Law or Litigation: What's your Vote?

The Cleavers Divorce: A Mediation

The Huxtable's Divorce: A Collaborative Divorce

The Honeymooner's Divorce: A Litigation Case

To learn more about the pros and cons of each option visit our: Litigation site, Mediation site, or Collaborative Divorce site.

Regardless of which of these paths you believe is best for your case, you will likely benefit from some help:

4. WHO can help you get divorced?
An attorney can help you with all of the steps in the divorce process. An experienced Massachusetts divorce attorney can answer or help you answer all of the questions raised at the beginning of your case (as covered in this post); help guide you through the process that you choose; assist you in drafting necessary documents, negotiating and presenting your case; and prepare and explain any settlements in your case. You can hire an attorney to help you with all of these elements of your case, or just parts of your case (through Limited Assistance Representation).

In addition, whatever path you choose to get divorced, there are many instances where other professionals can assist in moving a case forward and reduce the cost spent on attorney's time as described in our post: Besides an Attorney, what professionals might be involved in my Divorce case?

And finally, even once you've answered the who, what, why and how, you still need to know:

5. WHERE will you get divorced?
In Massachusetts, the county that you file for divorce in is controlled by M.G.L. c. 208 s 6. You should file in the probate court in the county where either you or your spouse lives, unless one of you still resides in the county where you last lived together, in which case you should file in that county. For clarification on how to apply these rules, and to read about two exceptions to the rules, read this post: What County do I File my Divorce in? Click here for Directions and Phone Numbers to the Probate & Family Courts in each county.

The Divorce Roller-Coaster: An Infographic of Options

noreply@blogger.com (Kelsey & Trask, P.C.) — Tue, 18 Sep 2012 14:00:00 +0000

There are four tracks you can choose from to get divorced in Massachusetts: Direct Settlement Negotiation, Litigation, Mediation, or Collaborative Divorce. We created the following infographic to help you visualize the different tracks you can choose from, and how you might end up moving from one track to the other (as well as some of the important waypoints along the way):

You may reprint or distribute this Infographic on your website so long as the copyright and contact information for Kelsey & Trask, P.C. remains attached to the bottom of the image.

To reprint copy and paste the following code:

<a href='http://familylaw.kelseytrask.com/blogimages/massachusetts_divorce_options.gif'></a>

Click here for more information about Divorce Options in Massachusetts.

Can I file for divorce in Massachusetts? An Infographic

noreply@blogger.com (Kelsey & Trask, P.C.) — Tue, 11 Sep 2012 14:00:00 +0000

The following chart displays the paths for determining whether you qualify to file a divorce in Massachusetts. Our hope is that this infographic can help clarify the confusing question of jurisdiction over a divorce case in Massachusetts by consolidating the statutes and case law into one chart.

As we discussed in a previous post, just because you can file for divorce does not necessarily mean the court has jurisdiction over all issues in your case. If your case involves residency, property, or children living in multiple states, you should definitely consult with an attorney.

<a href='http://familylaw.kelseytrask.com/blogimages/massachusetts_divorce_jurisdiction.gif'></a>

Click here for more information about Divorce in Massachusetts.

CPR: Co-Parenting with Respect: A program designed for parents who want to co-parent more effectively.

noreply@blogger.com (Kelsey & Trask, P.C.) — Thu, 16 Aug 2012 16:54:00 +0000

Guest Post Introduction: Jill Reiter LICSW and 2 other highly trained and experienced mental health professionals combined their education, years of experience and knowledge to create a well thought out educational program that addresses the complications involved in co-parenting through and after divorce. This program has been implemented in the Denver area with great success! The Co-Parenting with Respect or CPR program is now available in Concord, MA.

Jill provided us with the following guest post describing the CPR Program:

CPR: Co-Parenting with Respect:
A program designed for parents who want to co-parent more effectively.

Co-Parenting with Respect through and after divorce is a concept that has been plaguing parents, attorneys, therapists, judges and children for years. How do we assist families in high conflict to continue to interact respectfully in an effort to offer their children what they need in spite of their current personal struggles?

How does the CPR Program work?

The CPR Program involves the whole family:

Any parents who were never married, separating, divorcing or post divorce, which are experiencing conflict in the area of parenting their children. Parents must attend together. If remarried or co-habitating step parents must attend too. Parents with restraining orders may get this modified and attend as well. (Safety concerns will be considered and precautions instituted)

The CPR program gives everyone a voice:

The CPR program in total is 10 hours over 6 weeks and is delivered in 3 phases.

1. Child Voice session: the children use the first hour only! for purposes of gleaning information on how the children are experiencing their parents conflict and what they would like to see change. We do this by giving the children developmentally appropriate activities that allow the children to express their thoughts and feelings in a safe and constructive manner. We tell children that this will be used for the purposes of helping their parents to better meet their needs and work out their differences (or some variation thereof).

2. Parent’s sessions: Total of 4 two-hour sessions that delve into the heart of respectful communication, how this relates to the needs of their children and exercises on how to implement the techniques and skills taught in the class. CPR goes beyond just the "how to" and "why" by assisting client’s co-parenting skills through practice sessions and building on what they already know. This individualized program implements curriculum on healing and moving beyond the conflict of the past to focus on the children now.

3. Family Commitment session: This is the final 1 hour session where the entire family convenes in the office and parents deliver (a very well thought out and practiced response) to their children focusing on, not only the content of the children's concerns and experiences, but what they have learned in the class and the commitment they will make to their children.

The CPR Program is affordable:

The program is designed to be affordable! The CPR staff realizes the enormous costs associated with divorce including attorney's fees or GAL fees, lost work due to court time and court fees, let us not forget parking and the emotional cost of all of the above!) In its entirety is $600 per parent. That is only $120 per hour for a program that could drastically change the course of their lives. The fees are collected at the time of registration and non-refundable if parents choose not to finish the program.

We also strive to be flexible in the area of scheduling. Daytime and Evening hours are available and occasionally even weekends.

Through the experience of the CPR staff, we realized that ongoing support and accountability are necessary for the sustainability of the skills learned and practiced throughout the program. We there for developed what we term “Booster sessions”. These sessions are in addition to the structured program; therefore clients will pay for these separately at the time of the session.

We recommend that clients end their family commitment session by scheduling their follow up in 3 months. This will further solidify the need to implement and carry out the plans that were outlined in the final session. The entire family would come to the follow up meeting.

The CPR Program has proven success:

CPR is a very well thought out program that is delivered in a safe and comfortable environment. Clients have literally changed the course of the lives of their families by working through their old patterns and developing healthy styles of interaction and communication patterns that focus on the health and well being of their children.

You can read more on the CPR program by visiting www.coparentingwithrespect.com or call Jill Reiter LICSW directly to register today! 978-424-1170.