Sunday, February 26, 2017

Durable Power of Attorney or Guardianship?

   Right about the time I first started practicing law about 38 years ago, the Massachusetts legislature passed a statute allowing Powers of Attorney to be 'Durable', that is, they remained in effect even after the person executing it became legally incompetent. Prior to that, if a person became legally incompetent, or unable to communicate their wishes, the only option for handling their legal affairs was to petition the Probate & Family Court for a guardianship proceeding on that person's behalf. This procedure is expensive, time-consuming, and could lead to extensive litigation if the heirs-at-law do not agree on who should serve as guardian, or even if a guardian is necessary.
   A Durable Power of Attorney is an essential estate planning tool for everybody. The cost of preparing one is relatively nominal, and it allows the trusted person you choose to continue handling your affairs, whether it be running your business, paying your bills, or hiring caretakers and selling property. The DPOA can remain dormant until you need it, and can be revoked at any time, by a writing to that effect. Best of all, it is immediately available when needed (provided you left an original where it can be easily accessed), and costs you and your family nothing to use.
   Nowadays it is only necessary to bring a formal guardianship under a few circumstances:

     1.  If the Protected Person failed to execute a Durable Power of Attorney prior to becoming incompetent, or losing their ability to communicate (as from a stroke). An incompetent person cannot legally execute a DPOA.
    2.  If the executed Power of Attorney is challenged due to undue influence or financial abuse on the part of the named attorney-in-fact, which is often alleged by concerned family members or Elder Protective Services.
    3.  If the Protected Person suffers mental illness or dementia, and needs to be prescribed psychotropic medication, Massachusetts law requires that the guardian present a medically necessary Treatment Plan to be approved by the Probate Court, which describes the medication and dosages, and which will monitor the treatment. The Court will appoint specialized counsel to represent the Protected Person in the proceeding, called Rogers counsel after the case establishing the procedure, and require a new treatment plan to be approved periodically. If the Protected Person's estate cannot afford the cost of Roger's counsel, the Commonwealth will pay for it.
    In sum, for almost all situations a Durable Power of Attorney is a must for proper estate planning, and will save you and your heirs substantial grief and monies if properly utilized.
     As always, legal advice is very fact-specific, and life decisions should not be made on the basis of an article. If you need assistance or answers in this area of the law, I can be contacted directly, or through my web site at

Alimony Law in Massachusetts - Part I: The Reform of General Term Alimony

   When I first started practicing family law in Massachusetts, it seemed as if alimony was becoming an endangered species: other than traditional-role, long-term marriages, you rarely saw it. This was because under Massachusetts law at the time, the Court could not order alimony for a definite period of time after a trial. The Court was only empowered to order alimony for an indefinite period of time, leaving it up to the parties and their attorneys to bring a subsequent Complaint for Modification once the reason for the alimony had ended, or the paying spouse became disabled, unemployed, under-employed, or had reached retirement age. The alimony statute in effect at that time, M.G.L. chapter 208, sec. 34, did not contemplate limited duration orders, or provide any guidance as to calculation of the amount, leaving everything in the judge's discretion after considering the enumerated factors, such as age, length of marriage, contribution, etc. Judges were reluctant to order alimony in relatively short-term or shorter-term marriages, as it could result in a lifetime obligation.
   Most alimony judgments were agreed-upon after negotiation. The parties were free to do what the Court could not, that is: agree to a limited duration of alimony, which provided a degree of security, and omitted the need to return to Court in the future, saving the parties time and attorneys fees. This eliminated the uncertainty of the future, and saved people from having to litigate issues such as whether their retirement was "in good faith". The parties that could agree did not have to spend untold thousands of dollars "rolling the dice"; the parties that could not agree ended up litigating alimony amounts, duration, whether a material change in circumstances has occurred, and whether alimony obligations should end at retirement. In some cases, the litigation and bringing of Modification Complaints went on for decades.
   In 2011, Massachusetts finally joined the majority of states in passing the Alimony Reform Act, and setting limited duration alimony based on the the length of marriage. Where there is a substantial difference in income, and no agreement to the contrary, the Court may order general alimony as follows:

a. Where the length of marriage is less than five (5) years, alimony may last for not longer than one-half the number of months of the marriage.

b. Where the length of marriage is ten (10) years or less, but more than five, alimony may last for not longer than sixty (60%) percent of the number of months of the marriage.

c.  A 10-15 year marriage is limited to seventy (70%) percent of the number of months married.

d.  A 15-20 year marriage is limited to eighty (80%) percent of the number of months married.  

e.  A marriage of longer than twenty (20) years allows the court to do what it always did in the past, and order an indefinite term of alimony. 

Unlike before, there is now a presumption that  alimony terminates upon the payor reaching full retirement age, and the ability to keep working after that age is not, by itself, grounds for continuing alimony.
   "Length of marriage" is calculated from the date of marriage until the date that one of the parties is served with a Divorce Complaint and Summons.  
    The new law also changed existing law by allowing alimony to be terminated if the recipient spouse is cohabitating with another person for three months or longer. The delineation of factors is contained in M.G.L. C.208, sec.49(d).
    Many issues continue to be litigated in interpreting this relatively new act, which will be discussed in later blogs on this topic. One case which came down in 2014, Holmes v. Holmes , 467 Mass. 653 (2014), holds that the clock doesn't start running on the duration of alimony payments until the final judgment of divorce enters, and does not include the period of time when temporary support was paid while the divorce proceedings were pending. This could easily add one or two more years of payments in cases which do not settle, and should be taken into account when negotiating settlement.
   In addition to the changes to General Term alimony outlined above, the 2011 Alimony Reform Act also created or codified several limited situation forms of alimony, as well as created standards for the calculation of alimony. I will deal with these issues in Part II.
   All legal advice is fact-specific, and you should never rely solely on an article you have read in making major life decisions. If you have any questions as to how this new law pertains to your personal situation, feel free to contact me directly, or through my web site at

Friday, November 11, 2016

Temporary Orders in Massachusetts Family Law Cases

     Many cases in the Massachusetts Family Law Courts start with a motion hearing requesting temporary orders. If you have just been served with papers initiating an action and scheduling such a hearing, do not wait until after the hearing to hire a lawyer, even if you only have a few days' notice. The Orders issued by the Court will usually last until either the trial or settlement, and will set the tone of the litigation to follow. You do not want to prejudice yourself by agreeing to terms without the benefit of legal advice and experience. Many people have agreed to financial orders without the benefit of counsel and discovered later that they cannot afford the payments they agreed to. Their requests for relief from the Order usually fall on deaf ears, as the Court will always assume that you can afford any financial order you agreed to pay, regardless of what your Financial Statement says.
     Temporary orders are issued during pending divorces and other cases in order to resolve certain issues which cannot wait until trial, and to maintain the status quo until the Court has an opportunity to hear the merits at trial, or until the parties settle. Common issues in a divorce or other family law matter involve: temporary physical and legal custody of minor children, visitation, spousal and child support orders, who remains in the marital home, and who pays to maintain the marital home, i.e. mortgage, real estate taxes, and utilities.
      Once a Court enters a temporary order, they are reluctant to change the Order prior to trial, especially if the Order was agreed to by both parties. This is why an Agreement at the Temporary Order stage for the children to remain with one spouse "for now" may remain in effect for months or years. This could prejudice you in a child custody case where, all things being equal, the Court will usually not uproot children. Your odds of changing physical custody before trial improve if the initial temporary order was made over your objection, (although you would still have to show that the immediate change is necessary under the Best Interests of the Child standard).
     In Massachusetts, two kinds of temporary orders issue automatically upon service of the Divorce Complaint:
         1.  One is the Financial Restraining Order under Rule 411, which prohibits each party from transferring, hiding or encumbering assets except in the normal course of business, as well as changing any beneficiaries or coverage in insurance policies and pension plans without either the consent of the other party, or Order of the Court after notice to the other party. This remedies a problem in the past where vengeful spouses would respond to a divorce complaint by canceling their spouse's car insurance or medical coverage. All parties to a divorce action are automatically served with a copy of the Order, and violation of he Order is punishable by the Contempt power of the Court.
         2.  Under Rule 410 of the Supplemental Rules of Domestic Relations Procedure, each party must exchange financial documents with the other within 45 days of service of the Complaint. The documents exchanged must include three (3) years of all tax returns, bank statements, investment accounts, pension and retirement accounts, as well as current financial statements and current health insurance coverage. This rule obviates the need for attorneys to file routine discovery motions, and pushes the case along early with an exchange of information which will hopefully result in a quicker settlement, or at least quicker preparation for trial. 

Wednesday, September 28, 2016

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

  Over the past 38 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 children 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. Ninety-eight (98%) percent of all divorces will and 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. And once that Restraining Order issues, you will find it almost impossible to obtain joint legal custody.

Saturday, July 9, 2016

Divorce Legal Fees Pendente Lite - Or: How Can I Hire a Lawyer for My Divorce if My Spouse has all the Money?

     In many marriages, particularly traditional ones, one spouse earns and/or controls the monies, and the other does not. Where the spouse with the money files for divorce, the other often feels at a disadvantage, financially speaking. They meet with attorneys and tell them that they do not have money for a normal divorce retainer. Too often, they meet with an attorney lacks the experience and knowledge to properly advise them as to their options.
     In fact, the Probate & Family Courts in Massachusetts are specifically authorized by statute to "level the playing field" in these circumstances. Massachusetts General Laws c. 208, Sec. 17 states that "The court may require either party to pay into court for the use of the other party during the pendency of the action an amount to enable him [or her] to maintain or defend the action,...". In short, your spouse can be ordered to pay your lawyer's retainer, as well as pay the balance at the end of the case.
     I have personally used that statute to help clients bring or defend actions that they thought they would never be able to afford, including non-divorce actions, such as paternity/child support actions. This statute is a great equalizer, and is under-utilized by many attorneys.  One caveat though: the other party has to actually have the money or the personal ability to pay: If your spouse has no liquid assets and borrowed their money from a relative, you cannot get an order for attorneys fees without showing that this borrowing is a normal part of their lifestyle.

Tuesday, June 14, 2016

What Do Judges Want?

     It was Dr. Sigmund Freud who once rhetorically asked: "What do women want?". Litigants and lawyers preparing for trial should likewise ask: "What do Judges want"?
   Based on my observations, judges today, especially in Massachusetts, are swamped with cases, with new ones filed every day. They have no personal interest in the outcome of any of the cases that come before them: if they did, they would have to recuse themselves from the case. Like the rest of us, they want lower-stress working conditions, and a rewarding outcome from a day's work. My take on what they want is as follows.

   1.  They want cases to settle. 
      Look at the sheer volume of cases before them. If even ten (10%) percent went to trial, the entire judicial system would ground to a halt. Most cases the judge has seen a few thousand times, and intuitively knows in what direction a jury (or judge in domestic and probate cases) will probably decide. In a family law case, they are more concerned with giving the parties closure than in validating one parties' claims against the other. Like everybody else, he or she would prefer that people leave the courtroom happy, or at least not unhappy. If a case goes to trial, there will be an eventual winner and a loser, and closure is delayed, possibly for years during one or two appeals. If a case settles, both parties can come out ahead, with an outcome they both can live with.

   2.  They want counsel to be courteous to each other.
      There was a time when professional courtesy was the rule, not the exception. With the over-saturation of lawyers in America, many attorneys are stressed, and civility starts to take a back seat. Nothing appears to anger a judge more than two attorneys squabbling over minutia. I remember one judge yelling in a crowded Trial Assignment Session: "Can the two of you agree that today is Wednesday?" before storming off the bench. Hearing and resolving cases is hard enough without playing nursemaid to attorneys who cannot get along, and treat each other with courtesy and respect.

   3.  They want the parties to be honest.
     The Court system is designed to arrive at the Truth. When a party hides or misrepresents the truth, they are subverting justice. In a domestic relations case, a party who tries to hide assets often discovers to their chagrin that the Court, upon discovering an undisclosed asset, will often respond by assigning that asset to the other side. In other civil cases, the Court may assess attorneys' fees, or cite a party for perjury.

   4.  They want parties and their attorneys to be realistic.
     Your minor neck or lower back injury is not a six-figure case. You will not get custody of a child you have not seen in five years. If you win your trial, the Judge will not give you a gold star. Parties and their counsel should be aware of the probable results of their case going in.

   5.  They want counsel to be prepared.
     It irks the judge during a trial to find out that the attorney never bothered to research the law as it applies to their case, or to properly prepare his or her case for trial. Do not expect the judge to do your job for you.

Tuesday, June 7, 2016

Children Born Outside of Marriage: Child Custody v. Child Support

     Many times, when a child is born outside of a marriage, it is just a matter of time before the couple end up in Family Court (Probate & Family Court in Massachusetts) to decide issues such as custody, visitation, and child support. More often than not, it is the Mother who has had physical custody throughout the child's life, and is seeking child support from the other parent.
     Many non-custodial parents try to avoid paying child support as required under their state guidelines, particularly in Massachusetts, which has among the highest support guidelines in the country (if not the highest). Some think they can make the custodial parent "go away" by threatening to ask for sole physical custody, or shared physical custody. The threats are usually empty, and the custodial parent should not be intimidated by them, as she will almost always prevail absent a history of abuse or neglect of the child.
     Unlike a situation following a divorce, - where there is a presumption of shared legal custody, and where physical custody will usually go to the parent who has a history of taking primary care of the child - in an out of wedlock situation in Massachusetts, the birth mother is presumed to have sole physical and legal custody unless a Court subsequently rules otherwise. There is no presumption of joint legal custody, and a non-custodial parent will only be awarded joint legal custody when the parties have shown a history of having been able to work together jointly to further the best interests of the child. In short, a divorced father is presumed to be on equal footing with the mother, while the unmarried father has to demonstrate a history of shared responsibility for the child and the ongoing ability to communicate civilly with the mother regarding the best interests of the child.
     Some of the fathers sued for child support have little or no connection with the child since birth, yet they still make this silly threat in the hope that the mother will be scared away. Rest assured: no competent family law judge would suddenly uproot a young child and move their home on the basis of a piece of paper filed by a previously uninvolved parent. The Courts seek stability for infants and children; changes of physical custody only come about by agreement, by marriage, by emergency, or by a history of involvement with the life of the child.
     Please note that the Massachusetts Child Support Guidelines presume that the non-custodial parent has the company of the child for up to one-third of the time. Even if the parents share time equally, unless the parents have similar income, the higher-earning parent will probably be ordered to pay something in the nature of child support (albeit at a lower rate!) to equalize the ability of both parents to support the child or children in accordance with their combined joint income.