Myth: If I’m completely uncooperative, I can stop the case from moving forward.

Truth: All too often, people believe that if they refuse to participate in the process (divorce, child custody, child support, alimony, paternity, etc.), the process can’t move forward.  The truth is that while this might stall the proceedings temporarily, it won’t work for long.  Not only will the process move forward, but it will more than likely end with a final result that you absolutely hate.  Why?  The courts can only make decisions based on what is presented to them, and the other party has no responsibility to tell them your side of the story.

Your failure to respond to filings and refusal to show up for court dates hurts only you.  Only you (and your attorney) can defend your interests.  The thought of going to court makes everyone anxious.  It’s not a pleasant way to spend your day.  But what’s at stake is too important to let anxiety get in the way.  If you ignore the process, the process will go forward, ignoring you.

Myth: A good lawyer can be found cheaply or for free.

Truth: You wouldn’t walk into the super market and ask for free food.  A brand new car with an incredibly low price tag would probably make you suspicious.  So why would you expect a good family law attorney to be cheap or free?  Like all other things, when it comes to legal services, you get what you pay for.   Why would you want to pinch pennies with what is at stake in a family law matter?

If you truly cannot afford a family law attorney, it may be worthwhile to look into pro bono (free) legal services that may be available to you.  There are a few things worth remembering when looking for these services:

-           Just calling private attorneys offices and asking for free or discounted rates likely isn’t going to get you free or discounted services.  It’s not that attorneys don’t want to help you, it’s that they can’t afford to!

-          Family law matters are matters of civil law.  This means you don’t have the right to an attorney.  That only applies to criminal matters.

-          Legal services agencies (agencies that receive funds from the Commonwealth to provide free legal services) can only provide services to individuals who, at the very least, meet income requirements.  In lawyer terms, you must be “indigent.”  This typically means your household’s income is equal to or less than 175% of the Federal Poverty Line.  Right now, that’s approximately $13,500/year +$4,500/year for each additional family member living in the household.

**Even if you meet this requirement, different agencies have different “priorities” for service.  These priorities are set by the Commonwealth when the agency is created.  While the agency might have discretion to accept other cases, they also have practical limits like their funding and their caseload.  Often these agencies can’t accept all cases that fall within their priorities, let alone accept ones that fall outside of them.

Related posts:

1. Family Law Myths Exposed: Part 2 In Part I of this series, I discussed a number...
2. Family Law Myths Exposed: Part 1 Anyone who’s had a matter in the Probate and Family...
3. Legal Fee Calculator How much does your firm charge for a divorce? It...

Myth: Having Joint Legal Custody means that each parent is financially responsible for half of everything the child needs.

Truth: Whether or not a parent has legal custody of a child has nothing to do with whether or not he or she has to pay support, or how much that parent will have to pay.  Legal custody dictates who gets to make major decisions for your child, like where your child will attend school.  Child Support is based on the gross incomes of both parents, and who has physical custody of the child.  Support is paid because both parents have a responsibility to contribute to their child’s financial well-being, but the court isn’t going to order a parent to pay half if he or she can’t afford that.

Further, both parents may not be responsible for all of a child’s expenses.  Child Support is about covering the necessities in a lump sum.  Things like food, clothing, rent or mortgage payments.  There are plenty of things that aren’t considered necessary expenses, or that are covered by orders separate from a Child Support order.  There may be separate provisions for healthcare expenses, or extracurricular activities.  Often times, when it comes to discretionary spending that the parents don’t agree on (for instance, one parent feels it appropriate to buy the child a brand new car and the other parent doesn’t agree), the parent who disagrees may not be responsible for any portion of the purchase.

Myth: Whether or not a parent pays Child Support determines whether or not he or she has a right to see his or her child.

Truth: The obligation to support your child and the right to spend time with your child are totally separate issues.  A parent who puts his or her child at risk may be required to pay support, even though he or she is not allowed to see the child.  Likewise, a parent who cannot pay support may have an order allowing him or her frequent visits.   In the Probate and Family Courts, judges are looking at what is in the best interest of the child.  Most of the time, this is the child having both of his or her parents in his or her life, making financial contributions at a level they can afford.

Myth: You have a right as a parent to see your child.

Truth: To a certain extent, this is true, but not the way most parents seem to think about it.  As mentioned above, the Probate and Family Court is really protecting the rights of your child; your child’s right to be safe, happy, and healthy—emotionally, mentally, and physically.  Most of the time, this interest is best served when everyone who loves your child gets to play a part in his or her life.  This is why a court will order a visitation schedule.  Not because you as a parent have a right to that time with your child, but because your child has a right to that time with you.

Related posts:

1. Family Law Myths Exposed: Part 2 In Part I of this series, I discussed a number...
2. Family Law Myths Exposed: Part 3 Part III of an ongoing series exposing the truth about...

In the past I’ve discussed how to modify Child Support Orders.  In that post, I pointed out that to modify the order, the court will need to see that a significant change in material circumstances has occurred.  Becoming eligible for SSDI is exactly the type of change I was referring to.  In fact, the benefit your child receives might even completely cancel out your weekly child support payments!

Consider what a Child Support Order is really for:  to ensure that your child is financially supported.  That the support is coming in is what counts.  If the Dependency Benefit your child receives is as much or more* than the amount you should be paying under the support guidelines, there’s little reason for you to be paying additional money above and beyond that.  By bringing your SSDI benefit (and your child’s corresponding Dependency Benefit) to the attention of the court, you may be able to substantially decrease, if not eliminate entirely, your weekly obligation.

*Note that where the Dependency Benefit is greater than the amount owed under the guidelines, your child will continue to receive the full benefit, and you will not be entitled to the difference between these amounts.

Related posts:

1. Can I modify my child support order? Child support is always modifiable in the probate courts of...
2. Should anonymous sperm donors pay child support? In a novel case that’s being heard by the Court...

The standard used to modify child support is that there must be a significant change in circumstances.  Something significant must have happened between the last order of child support and the new order you’re trying to obtain by a Complaint for Modification.  A significant change can be a dramatic raise in the other parent’s income or them winning the lottery, a big decrease in your income, or a big increase in the child’s needs (such as an accident or injury).

A request for modification will not be approved if there isn’t a significant change.  As you are asking the court to change the child support order, you must prove to the court that there is a significant change for the court to approve an increase (or decrease) in child support.

Related posts:

1. How Does SSDI Affect My Child Support Order? If you have recently become eligible for SSDI (Social Security...
2. Can I modify a property distribution after divorce? You’ve gotten a divorce and both you and your ex-spouse...

Sperm banks’ list of depositors are typically sealed tighter than a Swiss bank vault (although recently, that’s not so tight either).  This is to protect the possible children of the donors and more importantly the donors themselves.  The outcome of this case could jeopardize the entire sperm donation industry and therefore the hopes of a lot of women who wish to be artificially inseminated by anonymous donors.

If the identity of this donor were ordered to be disclosed – even if he ultimately would not be ordered to pay child support – it would put a chill on anyone who would even consider being a sperm donor.  They would fear the threat of having to be dragged into family court and established to be the father.

Legally, I don’t believe the donor’s identity should be revealed.  It would break the mother’s contract with the sperm bank and it would go against public policy.  Personally, I believe this is a very selfish and desperate action by the mother.

No related posts.

Alimony in Massachusetts is a mess.  That’s a simple statement with not so simple consequences.  Alimony in Massachusetts is a mess because there is no why and no how to it.  There is no rhyme or reason.  If no one ever articulated a reason for alimony or a “how” to calculate it, then the legal system is little more than a game of Judges picking favorites.

I’ve had opportunities to represent both husbands and wives in alimony cases.  Whether alimony gets awarded and how much depends mainly on the length of marriage, the earnings of both parties and the judge.  There are judges I’ve appeared in front of that I do not agree with and I believe has a wrong outlook on what alimony is suppose to accomplish.  Then there are judges that are extremely wise and contrary to the Boston Magazine article, do see the role of alimony as finite and they do impute income to the recipient spouse (usually the wife).  But despite the wisdom of these judges, they are restricted by statute and various case law on what they can do – and that is a shame.

There is a movement going on in Massachusetts right now to reform alimony and I believe in it.  Recently, child support was reformed in Massachusetts to take it more in-line with other states.  Child support now counts the contribution of both parents in supporting the minor children, not simply the payor as was the case in the past.  There is now a fair and fixed formula for child support.  Have all child support lawyers gone out of business because of it? No.  There will always be those cases where there are conflicts and that’s where lawyers come into play.  Alimony should be no different.  There should be a finite limit and there should be a formula to calculate it.

[Massachusetts Alimony Reform]

Related posts:

1. Should anonymous sperm donors pay child support? In a novel case that’s being heard by the Court...

1. You know exactly what the “merger” and “survival” clause of the Separation Agreement means.
2. You’ve divorced so many times that you know all the pitfalls and traps of a divorce (and your name is also Elizabeth Taylor)
3. You know exactly what parts of your Separation Agreement is modifiable, when it’s modifiable and how to modify it
4. You’d rather wait and spend thousands of dollars down the road to modify or file contempt actions then for a lawyer to tell you the pitfalls today
5. You expect the court’s clerks to give you legal advice
6. You expect the judge to give you legal advice
7. You know exactly how to write out the terms of child custody, child support, alimony, health insurance, property division, tax returns provisions, etc.
8. Your spouse’s divorce lawyer told you to sign on the dotted line with no explanation and you’re comfortable with that
9. You are a family court judge
10. You are a divorce lawyer

Related posts:

1. Forms for an Uncontested Divorce Below is the list of forms needed in order to...
2. 10 traps to avoid in your Separation Agreement The Separation Agreement in a divorce is arguably the most...

Here is part 1: Parent Education Class – Part 1

The main message of the second day of the class really was about co-parenting.  As I say to my clients all the time, you are divorcing your spouse, not your family.  You, your soon-to-be-ex and your children will always be a family.  Nothing can ever change that – no judge or court or any other legal intervention.  So if you’re going to be a family together, then act like it.

Here are some take-away points:

• Talk to the other parent directly and don’t use your children as messengers.  Don’t say things like, “Tell your father that he’s 2 weeks late on his child support” or “Tell your mother that she needs to bring you  back on time.”  That doesn’t foster good relations between you and the child and makes the child’s relationship with both parents uncomfortable and ultimately damaging.
• Don’t discuss issues with the other parent with the child.  In other words, don’t ever bad-mouth the other parent.  If the other parent bad-mouths you, bite your lip and don’t counter with something bad THEY did.  Your children will ultimately realize that you’re a good parent and you were a good parent partly  because you never made them uncomfortable to be around you or their other parent.
• Pay attention and listen to your children.  Children pick up on your bodily actions and tone when you don’t want to talk or too busy.  If your children  has something they want to say, let them speak and put the groceries down.  The groceries will still be there later – your child’s feelings  and their ability to express them might not.
• Do not use child support as a weapon.
• Do not use contact with the children as a weapon.
• Don’t over indulge your child because you’re trying to “win” them over.  Children needs structure and guidance and boundaries – not free roam, gifts and toys.  If you try to win them over, in the short run, they might “love” you more, but in the long run, you’re hurting them by not being a parent.
• Don’t over burden your child with extra responsibilities or emotional baggage.  Remember that the divorce is not your children’s fault and therefore, if you make them carry the load that your ex used to carry, they will see it as punishment and they will start to think that what happened to the family is their fault.
• Your kids have enough to worry about, don’t trouble them with money issues.  You should continue to teach your children about the importance of money and the value of a dollar, but remember, if you didn’t burden them with the mortgage payments before, then you really don’t need to tell them about your late payments now.

That’s a short laundry list of Do’s and Don’ts for parents but it’s also important to realize that kids always know more than they’re leading on.  It’s also important to not let them control and guilt you as a parent.

Children often make a point to tell you what the other parent got them or let them do.  Don’t fall into this trap because it leads down the road of over-indulgence and a race to “win” them over, as I stated above.  The important thing to realize is that sometimes it’s not the parents fault but the kids who are taking advantage of the situation.  Now is the time to be good parents and set boundaries.

If you are having trouble coordinating times and communicating with the other parent, I have found two great internet sites that might be helpful.

• OurFamilyWizard
• JointParents

Both sites offer tools to help parents communicate more effectively, set schedules for themselves and their children and thereby engage in better cooperative parenting to their children.

A Plea to Parents from a Divorce Lawyer: Leave Your Kids Out of it!

Related posts:

1. How Children Handle Divorce My friend Leanna Hamill shared this site on twitter: Postcards...
2. What is the difference between physical custody and legal custody? When we talk about child custody during a separation or...

When multi-millionaire fund manager Brian Myerson negotiated his divorce, he gave cash and assets to his wife and just took shares in his company as his portion of the joint assets. Cute, right? Well, this is one risk that didn’t pay off for the edgy activist investor: his company’s shares subsequently plummeted 90%, leaving the ex-wife walking off with what basically amounts to 105% of the divorce assets.

Myerson appealed his case in court — and lost.

Here in Massachusetts, it’s no different.  If you get a divorce in Massachusetts and during the course of negotiations you reach a settlement agreement on division of property, you cannot (except under very unusual circumstances) change the agreement after the divorce has been approved.  There is a thing called a Complaint for Modification to modify parts of a divorce settlement, however, it is not for modifying property distribution.  Modification actions are for modifying child support, custody/visitation and alimony.

So before you sign on the dotted line on that Separation Agreement, think long and hard because you cannot take back what you have given away.

Related posts:

1. Can I modify my child support order? Child support is always modifiable in the probate courts of...

The Probate & Family Court has announced a pilot program that will provide information to litigants about the court process.

The program is intended for those with cases pending in Norfolk County and those considering future filings of divorce, paternity, contempt, guardianship of a minor or custody complaints.

“Navigation Through the Probate and Family Court” will be presented by staff members and others partnering with the Norfolk Probate & Family Court.

Basic information regarding the court process will be presented; a general question-and answer period will follow.

The 90-minute program will be held the last Wednesday of each month, beginning March 25, at 7 p.m. The location for at least the first six meetings will be Canton High School, 990 Washington Street, Canton.

No related posts.