Essential Question's to Ask Before Choosing your Counsel

Be sure to ask these questions before choosing who is going to represent you in your family law matter!   1. What is the hourly fee for the attorney? 2. Who is his paralegal? What is his/her hourly fee? 3. To reduce costs, please handle by electronic mail rather than paying for copies and postage. 4. What does the attorney know of   opposing legal counsel? 5. Because nothing has been filed, can he do so in his county or do you have to be a resident of that county? 6. If filed in opposing parties county, what should you expect for travel charges? 7. What is the attorney’s working relationship with the Judges? May the attorney pick the judge? 8. Is there any court ordered classes/mediation that will be required? If so, what is the process for handling that out of state? Fees? Where can you get more information? 9. What steps does the attorney recommend that you do prior to filing to give you the best chances of having a fair and amicable resolution? 10. Is it possible to have the fees for a contested divorce agreed to up front and included in the fee agreement? i.e. option A as already outlined and Option B. etc. rather than putting down another retainer. 11. Would it be better for you to file when you have established a permanent residence and secured employment? 12. Should you be filing in the State that you reside in? 13. If the divorce is contested, what can you expect for the discovery phase? Interrogatories, Depositions? Costs? Time?

Vaida v. Vaida

November Case Summary

Vaida v. Vaida

13-P-I827

The plaintiff, Nancy C. Vaida (mother), appeals from an order for summary judgment on her complaint seeking that the defendant, George A. Vaida (father), pay post minority support for his twenty-three year old physically disabled son.

 

The parties had three minor children. While the parties were separated and divorce proceedings were pending, two of the minor children were injured in a terrible car accident. As a result of the accident, Evan became a partial quadriplegic. The father was wholly responsible for the injuries that the children sustained. The mother subsequently filed a civil suit against the father.  While the suit was pending, the divorce was finalized.

 

The question before the court on appeal was whether a person of full mental faculties could receive post minority child support. The court held that post minority support is not available to adult children who are not incapacitated persons placed under guardianship. The court went onto say that a guardianship would not be appropriate as Evan had full mental faculties. The court also found that equity jurisdiction was not appropriate as the court’s role is to “enforce existing obligations . . . and not create new obligations.”

Comment: This case is important because it establishes principal and post minority support is only allowed in guardianship of incapacitated persons. If you have a disabled child you will need to do some advanced financial planning.

Special Needs Alliance Website

Duration of temporary alimony is not included in final alimony calculation

In the first of a few recent cases the Supreme Judicial Court ruled that temporary alimony is not to be included in the durational limits of permanent alimony absent unfair delay by the recipient spouse or an unusually long duration of temporary alimony.

This case clarifies that there is in fact temporary alimony and that temporary and general term alimony are separate and distinct things and that temporary alimony is not figured in the calculation of permanent alimony.

This is one of the first cases to come down that clarifies the new alimony statute.  Look for the alimony article in the upcoming BBA newsletter.

Think Before Divorce

Here are some recent statistics from a seminar which I attended that paint a disturbing picture of the divorce process and should give any lawyer pause before filing their next divorce case:

Children of Divorce are:

-twice as likely to drop out of school as those from intact homes

-three time as apt to have a baby out of wedlock

-five times more likely to be in poverty

-twelve times more likely to be incarcerated

(McManus: Ethics & Religion Sept. 12, 204 Column #1,203)

I understand that there is a distinct difference between causation and correlation, but the societal costs of divorce are tremendous. Ironically, I happened to be reading an article in the most recent edition of the Family Law Quarterly which supports the same premise. Another Inconvenient Truth by Patrick Parkinson reiterates the same point on a global scale. I’m not saying that we should stop being family lawyers, I’m just saying that we need to be aware of our client’s issues. They may have a lot more going on at home than just their divorce action. As a real world example, all one needs to do is volunteer at Attorney-for-the-Day in Probate Court. These statistics are a sobering reminder of the struggles that our potential clients may face. I just recently came across a website to help with post-divorce issues which I recommend to anyone dealing with post-divorce issues so that we can put a dent in some of these sobering statistics: http://www.freshstartafterdivorce.com/blog/.

Navigating Changes in Alimony Over Time

The purpose of alimony “is to avoid any unfair economic consequences of a divorce, even after property is divided and child support, if any, is awarded.”[1] Two Massachusetts cases illustrate how alimony changes over time, particularly when one spouse reaches retirement age.

In Pierce v. Pierce (SJC-10381), Rudolph Pierce, the former husband, had been paying $110,000 annually in alimony while earning approximately $450,000 each year as a partner in the law firm where he worked. At the age of 65, Pierce voluntarily retired and filed a motion to eliminate the alimony he was paying to his ex-wife Carniece due to his retirement. At the time of his retirement, Rudolph Pierce had remarried and his second wife earned $125,000 annually. In this case, the judge ruled that a reduction of alimony to $42,000 a year was fair for all parties involved. On appeal Rudolph Pierce again asked the court to eliminate his alimony obligation. The appeals court however found that while reaching retirement age is certainly a factor to consider in alimony judgments, the opposing party’s financial situation is also important to weigh when considering an alimony modification. In this case Carniece Pierce had recently become unemployed, had not received any severance, was not remarried, and at age 64, was not receiving Social Security benefits.  Furthermore, the judge concluded that while Rudolph was able to maintain the same standard of living that he had enjoyed pre-retirement, Carniece would not be able to maintain that standard without Rudolph’s alimony support. The judge also concluded that Rudolph would be able to afford the reduced alimony payments of $42,000 annually.

In contrast, in the case of Ross v. Ross (10-P-1130), the judge allowed that upon Adam Ross’ retirement, he no longer needed to pay alimony. In this case the judge allows that the defendant’s good faith retirement at the age of 65 would prevent him from being able to pay alimony due to his decreased income. Furthermore the judge demonstrates how Joan Ross’ need for alimony has diminished in the time since their divorce. Going back to the definition of alimony, intended to level the playing field, the judge found that in the 10 years since the divorce, the parties children have become emancipated, Joan can be self-supporting based on her skills, education and experience, and she does not need alimony to maintain her lifestyle. Another point of note is that at the time of the appeal, Adam was nearly 66 while Joan at almost 14 years his junior has more earning potential through employment or investments.

These two cases illustrate how the former spouse’s current economic situation remains a central factor when calculating alimony, even after one party reaches retirement age.

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[1] http://legal-dictionary.thefreedictionary.com/alimony

Divorce Process

This blog will explain the steps in a divorce, and what you will need to provide an attorney.  As you navigate through the process,  the first document you will need to bring is your original marriage certificate.  Sometimes clients want to keep this for their records or just simply to remember a time in their life.  The court however needs the original document.  The divorce will not be able to proceed unless the original is filed with the court. The second set of documents you will need are three years of your tax returns.  These forms can include 1099s 1098s and W-2's.  You also need three most current pay stubs from your employer.  It should be noted there are no gotcha moments in family law.  Everything is about disclosure and the best interest of the child.

When you get to my office (www.bmjr law.com), I will have the necessary forms for you to fillout. These forms include the Complaint for Divorce, Affidavit Disclosing Care and Custody, Statistical Report, and finally the Military Affidavit.  If applicable, you may fill out an Affidavit of Indigency which waives the court costs of $215.  The above-mentioned forms tell the court information about you, such as whether a spouse is in the military or if there are any care and custody proceedings already pending within the court system.

Once the divorce paperwork is filed, you should attend the parent education class, which is a requirement under Massachusetts law, if the parties have a minor child.  It is important that you attend this class.  Otherwise, the divorce will not proceed.  The parent education class seeks to provide guidance for children as their family structures are changing.

Once you've completed the parent education class you should begin working on the financial statement.  The financial statement breaks down your expenses in your life to determine how much child support and/or alimony you should receive.  I heard a judge recently say at a conference that both child support and/or alimony should not exceed 1/3 of the defendants income. Typically the longer the marriage, the more likely you will receive alimony. 

The opposing party has 20 days to respond to the complaint for divorce.  Once the 20 days have past I can file for a pretrial conference where the judge will attempt to settle the case or determine whether the case should go to trial.  Prior to the pretrial conference a four-way meeting must occur.  The four-way meeting is to allow all parties to discuss the issues in the case to determine which issues they agree or disagree on.  It is important to approach the pretrial conference with an open mind and a willingness to compromise.  This may be very difficult in some cases I realize.  At the pretrial conference the judge will determine the status of discovery and set a trial date.  If needed, he may also direct the parties to a probation officer to see if an agreement can be reached if the case is appropriate.  The vast majority of divorce cases settle during the pretrial phase.  Trials usually are over custody issues and can be painful for all sides.  It is important to remember that the best interest of the child is what's most important.  I hope you found this blog to be helpful in outlining the basic process of divorce.

To Be Material, or Not to Be?

This blog will examine what steps need to be taken to file for and prove a material change in circumstance. Part two of this blog will examine the new legislation concerning alimony and its impacts.

First a person must file a complaint alleging a material change in circumstance. The material change in circumstance must be something new that has not been brought to the court's attention during the divorce proceeding. Either party may file for a change in circumstance after the divorce has been granted. If the divorce was settled by an agreement, the agreement must have a merger clause merging the agreement into the final divorce judgment. The merger clause allows for the modification standard to be used rather than a more difficult countervailing equity standard. Some obvious examples of material change in circumstance are a job loss or ill health. These must be explained in the complaint and supported by evidence.

However, there are two different types of material changes in circumstance that are not as obvious as ill health or job loss. First is the situation that involves children. For example, the child has been living with his/her mom and now live with the father. Here, the change in circumstance also deals with the child and not strictly financial issues. Now, there's an additional step to the analysis. The court must now take into account the best interest of the child when considering a material change in circumstance.

The second situation to be aware of is whether either spouse has a new cohabitant. Under the current law in MA, the court considers this a material change in circumstance. Now, the non-cohabiting spouse is entitled to file for a modification of his/her alimony payment.

Furthermore, under current MA law, if one of the spouses remarries, the court may take into account the new spouses income when modifying a previous alimony judgment. This situation has helped form several groups such as the 2nd Wives Club and Mass. Alimony Reform whom have both participated in presenting the Alimony Reform Bill to the Mass. Legislature just last month.   

You can consult Brian McLaughlin for any of your modification needs at www.bmjrlaw.com

Christmas Does Not Always Bring Holiday Cheer

Christmas brings with it holiday cheer for some but not all.  The Christmas season can be very stressful with all the planning, decorating, etc.  Christmas is particularly stressful for those who are in divorced families for different reasons.  This post will attempt to provide some guidance.  First, there should be a written plan in place which spells out where the child is to go during the Christmas holiday. If there are older children involved, they should be included in the discussion. This discussion may not be possible for a particularly contentious divorce.

Second, parents need to set aside settling old scores and remember that the holiday season is about the children.  And lastly, the non-custodial parent should coordinate concerning the child's Christmas list with the custodial parent.

Concerning visitation, each parent must go into the holiday season with an open mind. They must realize that they are not going to spend as much time with the child during the holidays; mostly because there are grandparents, aunts, and uncles that want to see the child.  If a holiday falls on their assigned visitation day, they should not monopolize the child's holiday.  To avoid confusion for the child and the chaos of going back and forth on one day, perhaps the parents can arrange an alternate holiday schedule. For example, one year a child would spend the entire Thanksgiving with one parent and the next year would switch to the other parent. This avoids the child being shuffled from place to place. Remember when you were married and how difficult it was coordinately holidays with your in-laws; now your child is in that position.

The important thing to remember is that Christmas is about the children. This means do what ever you can to get along with your former spouse, remembering all the positive times you shared as a family.  This can be done by celebrating old traditions and creating new ones. If it is an amicable divorce, perhaps you could arrange a mutual place to have dinner. This creates a sense of normalcy for the child who is experiencing a different Christmas. Above all, make the Christmas season a positive experience for the child.

And last but not least, coordinate regarding gift giving. This is important for two reasons, first because coordination will eliminate duplicate gift giving and second the non-custodial parent tends to over-buy for the child.  The non-custodial parent because of feelings of guilt of not being able to be there for the child during Christmas, will tend to over-buy for the child. This over-purchasing will spoil the child and lead to resentment because the child will come to expect pricer gifts from the non-custodial parent. The most important thing is to not turn the Christmas season into a gift giving competition.

I hope this article provides some guidance thru an extremely painful and difficult holiday season for families that are divorced. With clear communication and a defined plan, the holidays can be far more joyous and less stressful.