Thursday, March 21, 2013

Restraining Orders

     I was a relatively new attorney when Massachusetts General Laws Chapter 209A was passed, creating the right to apply for restraining orders against spouses, family members, former lovers and dating partners, and other household members. Never was a statute so necessary: most violent crimes and murders occur among people who know each other, and despite the fact that fully one-third of the police officers who died in the line of duty died while responding to a domestic disturbance call, the Courts and the Prosecutor's offices often treated domestic violence  as a victimless crime, more a nuisance than a real crime. Charges were often dropped, especially by spouses and girlfriends feeling trapped, and the cycle of violence was perpetuated.
     As the years passed and the statute was 'tweaked', attitudes in the Court, the DA's office, and society changed, as domestic violence was finally recognized for what it was: a vicious cycle of physical and emotional pain that perpetuated itself between the generations; a slow physical torture of its victims, who had little support, financial or emotional, to escape the hell they lived in.
     Having said that, Chapter 209A also remains the most abused statute in the Commonwealth. Spouses and former girlfriends and boyfriends can allege almost anything in an affidavit filed in a district court, and the Court will issue a restraining order which adversely affects ones home, work, access to children, and ability to function. Too often, the allegations are either made up or exaggerated,either out of spite, or to gain an advantage in a divorce or custody fight. The Courts, especially the District Courts, are so afraid of negative publicity if they make a mistake, that they will grant the Restraining Order almost routinely, and the fabricator suffers no consequences, even if it is later proven that they lied.
     What is the answer? There is no perfect way to protect all the innocent and punish all the guilty who lied. But there are ways to better the system: The judges should be trained to be more discerning in granting this extreme relief. The DA's offices should actually prosecute the people caught lying. And we, the general public, should be taught to recognize and avoid dating and marrying vengeful and spiteful people, those who constantly need to litigate their relationships, and punish those who end them.

Tuesday, March 12, 2013

Does the Adversary System Work in Divorce?

     American courts follow their British counterparts by presenting legal issues in an adversary system. While this may work with criminal cases and certain civil cases, is it the best way to deal with divorce and other family law cases? In a word: NO.
      My personal experience is that while the adversary eventually works in most cases, it is far from the ideal way to work out most family law matters, and is not justified by the emotional damage to the parties - and unnecessary expense - that takes place during the long process of family law litigation. Most breakups involve complicated issues mixed with high emotion and tension. Zealous lawyers can make otherwise reasonable people attack each other vicariously. I once heard one divorcee describe the divorce process as "a public enema of your life." In too many cases, that is true. Rather than hiring attorneys to advocate positions which are entrenched due to anger and resentment, the parties would be far better served being counseled to mediate and communicate directly about the multiple issues involved in their breakup.
      In custody and visitation cases particularly, the adversary system is inadequate, at best. The attorneys and judges do not know your children like you do, and the usual "cookie cutter" approach the judicial system imposes in parenting plans rarely is the best solution. If and when the parties get past their anger over other issues (which can take some time in many cases), they realize that the parenting plans imposed on them by judges and lawyers lacks the flexibility they and their children need. With few exceptions, children need both of their parents to be involved in their lives. Despite what you now think of your former partner, you once chose that person to be the father or mother of your children. Well guess what: they still are, and will always be.  While Massachusetts requires parents to take a special divorce parenting class, it really does not go far enough. In cases where there are no serious issues of abuse, neglect, or substance abuse, counseling and mediation as to child-related issues should be the first step that the parties take, not the last.

Wednesday, March 6, 2013

How Do I Keep My Legal Fees Down?

     If you cannot mediate your divorce, for whatever reason, you can still take steps to minimize your legal fees. Some simple suggestions from my side of the fence:

  1.  Cooperate with your lawyer! 
       Lawyers need assistance from their clients to prepare their cases. From the gathering of documents, the naming of witnesses, and preparation of Financial Statements, the less time your attorney and their staff spend chasing you for information, the more time they can spend productively on your matter. Organized clients make our jobs a lot easier.

2.  Don't call your lawyer over every little thing.
      Lawyers charge for their time, so use it wisely. Instead of calling 3 times with 3 quick questions, call once and discuss all issues. Remember the lawyer's role: he or she gives you advice, prepares your case, and represents you in Court and in negotiations. Venting is better left for friends, (adult) family members, and counselors.

3.  Non-legal questions can be handled by  secretaries and paralegals.
      Questions on scheduling and how to fill out Financial Statements can more economically be handled by staff for free or at a much lower hourly rate.

4.  Take your lawyer's advice!
      If you are not going to take your lawyer's advice, then you are wasting your money. If you don't trust the advice, why did you hire the lawyer? Maybe it's time for a change. If you don't trust any attorney's advice, maybe it's time to re-think your attitude.

5.  Pick your battles.
       It is not economical to spend $200-$500 per hour to argue over the silverware and used furniture. Prioritize and remember what is important. Closure saves you money and peace of mind.

Monday, February 18, 2013

Legal Fees in Family Law Cases

Q: Why are legal fees so high in a Divorce?

A:  Because they're worth it!

---Old Joke; Author Unknown (And Wisely So)

    People who are "shopping around" by telephone often ask me "How much would a divorce cost?". I always tell them that I cannot even begin to estimate until I know the facts of their case, and then I invite them in for a (paid) consultation. Even after the consultation, usually I can at best only estimate.
    In the past 10 years I have charged from as little as $1,000.00 for a no-asset, no-children, no-support issues divorce, to as much as $140,000.00 for a highly contentious divorce involving custody, visitation, property division, and spousal support for an entertainer earning seven figures. Lawyers charge for their time, and the more time they will need to expend, the more you will pay.
     Your actual cost for a divorce will depend on the following factors:

      1. How experienced is the attorney?  Attorneys tend to charge more as they get older, more experienced, and gain more expertise in their areas of concentration.

      2. How complicated are the financial issues?  If you are trying to agree on values for businesses, stock options, foreign real estate, or there is an allegation that a spouse is hiding income or assets, experts will need to be hired (and paid).

      3.  Are there issues of custody and visitation?  Parents should always put the best interests of their children first, and work out their parenting arrangements amicably. A bitter custody dispute can turn the simplest divorce situation into a financial Black Hole.

      4.  How contentious are the parties?  Sometimes the bitterness which lead to the breakup carries over to the legal process. Often it wears down when the parties start getting their monthly bills from their attorney. However, some parties cannot agree what day of the week it is, let alone give the other side  (and themselves) the satisfaction of closure. Unfortunately, as I warn my clients, they can be the most reasonable person in the world, but if their spouse (or their lawyer) is not, the unreasonable spouse can unilaterally drive up the cost of litigation for both of them.

   How do you save yourselves from giving a substantial portion of your income and assets to the lawyers? Easy: find a trained Divorce Mediator together, go there with an open mind, and actually listen to each other. You will be amazed at how much cheaper and less emotionally draining it is.

Monday, February 11, 2013

Why Is Probate Litigation Like a Divorce?

     Sometimes Probate litigation is between a new spouse or girlfriend and children from a previous relationship. The adult children feel that they are more entitled than "that floozy/gigolo" to Dad or Mom's money, regardless of what Mom or Dad said in their Will. Sometimes there is no
Will, or assets were disbursed prior to death, leading to allegations of theft, conversion, and undue influence.
      More often, however, the litigation is between siblings who grew up in the same family, claiming an equal or greater right to their parents' financial legacy. Although they claim it is about "what is fair", and not just the money, it isn't. Like many divorces, the fight is really about things that happened years ago, old grudges that may date back to childhood, and a refusal to accept a decision that Mom or Dad made as to who they thought should handle their estate, or get the most property.
     Every Elder at some point in time has to decide which child (or other relative or friend) will handle their affairs and make decisions for them when they become disabled, medically and legally. The "unchosen ones" usually disagree with the choice. One lament I always hear from the "wronged" sibling is that the other placed Mom or Dad in a nursing home before it was really necessary. Nobody tells me they stepped forward and offered their own home. Litigation is expensive, and the settlements do eventually come down to money. But not before the litigants have re-fought old wars from their childhood, and vented about the sins of the past.

Is Probate Litigation Like a Divorce?


Wednesday, February 6, 2013

Limited Assistance Representation in Massachusetts Family Law Cases

      The economy has impacted the Probate & Family Courts in Massachusetts in several ways. With all of the layoffs and underemployment going on, many parties with support orders for alimony and/or child support find that they cannot afford it any longer, and are petitioning the Courts to lower their obligations until they resume earlier income levels. (For the record, these are called Complaints for Modification). Their former partners, meanwhile, are equally pinched financially, and are bringing Complaints for Contempt at record levels when their former partners stop paying, or reduce their payments. (Bear in mind, many parents were never married to the other parent, hence my phrasing). Many of these people do not have the financial ability to hire counsel, and are filing their paperwork pro se, that is, without an attorney. Add to this mix the fact that the entire Court system has had a hiring freeze these past 4 years and we have a recipe for disaster, as fewer judges with little or no staff have been hearing more and more cases where the litigants had no attorney to assist them.
       Four years ago. the Probate & Family Court started an experimental program to eliminate this backlog, and help litigants obtain at least partial legal representation. The program, called Limited Assistance Representation, allows litigants to obtain legal representation for part of his or her case, but to remain pro se for the balance. Whereas in the past an attorney had to charge a retainer and fee that contemplated remaining in a case until it reached final judgment, now parties could pay a more reasonable amount to an attorney to help them with only the more complicated aspects of their case. The Courts benefited by having more experienced attorneys present in family law cases to render advice and prepare and serve pleadings properly, and the attorneys benefited in having more work, now that they could ethically enter a case on a limited basis and withdraw when their role was accomplished. It also finally permitted "ghost writing" of pleadings, where an attorney can now ethically assist a client in preparing pleadings for a case without having to file an appearance and attend the hearings.
       The program is now spreading to other courts -- Land Court and Housing Court, to name a few -- and should improve the overall administration of justice for family law litigants. Not all attorneys in Massachusetts are allowed to file an appearance on a limited basis: every attorney who desires to handle cases in this matter must take a special training course, regardless of their prior experience. However, by opening the door to allowing more limited income clients access to legal advice and representation on an "as needed" basis, and enlarging the pool of paying clients for lawyers, it is a Win/Win situation for the courts, the attorneys, and most importantly, the clients.

Monday, February 4, 2013

6 Things You Should Never Say to Your Soon-to-Be-Ex

   Over the past 34 years, I have seen a lot of family law litigants say and do things which are against their own best interests. While divorce is an emotional time, and people understandable say things they do not really mean, there are some things that you really should NEVER say. For instance:

     1.  "If you get the kids, I will take them and you will never see them again."  
              Only say this if you really want to hand in your passport to the Court, and only see your children in a supervised setting. Assuring the judge that you did not really mean it will not help, as they tend to err on the side of caution and safety, especially where children are concerned. A corollary to this is when the custodial parent says:

     2.  "I'll take the kids and move to.........."
            Divorces are expensive enough without adding a child custody dispute to it all, which is what will happen if your future Ex truly believes you. Note that in both of these instances, the parent is trying to use the child or children as a pawn against the other, which is the last thing you should be doing if you truly love your children. Stand back and take a deep breath: this isn't just about you.

     3.  "I'll file for bankruptcy so you won't get anything."
           In an equitable distribution state like Massachusetts, the Court's starting point in dividing property is to split assets equally in a long-term marriage, and give them what they started with in a short-term marriage, dividing after-acquired property 50/50  (retirement plans have their own rules). Do not give the judge an excuse to give the other side more, or to put attachments on your assets.

    4.  Any statement that starts with "You/I will never..." or "You/I will always..."
          Eventually, you are going to decide that you want to put your own kids through college, not your attorney's kids. Psychologically, backing yourself into a verbal corner makes it that much harder for you later to compromise and reach agreement with your Ex. 98% of all divorces should eventually settle, and the longer it takes you to get there, the more you will pay your attorney.

     5.  "If I have to pay alimony/child support, I'll quit working."
          Support orders are based on earning capacity, not actual current income. A former spouse or parent who deliberately makes himself or herself unemployed or underemployed will still be held liable for the full amount of support previously ordered. And this is the type of statement that can come back to haunt you if you actually do get laid off, and need to ask the Court to modify your support order.

         Do not joke about it, do not post it on Twitter of Facebook, and never say anything even remotely like that in front of your kids. You will not enjoy living with the Restraining Order.