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.

Tuesday, March 29, 2016

Get that Surety Bond!

    Under the Massachusetts Uniform Probate Code (MUPC), you can administer your Probate Estate one of four (4) different ways: 
  1. Voluntary Administration, if your Probate Estate consists of less than $25,000.00 and a car (any value);
  2. Informal Probate, if there is no need for Court involvement and everybody interested agrees (or do not object);
  3.  Formal Unsupervised Probate, where there is Court involvement, but no need to file the traditional Inventory and Accounts, and have them approved by the Courts; and
  4.  Formal Supervised Probate, where the traditional Inventory and Accounts need to be filed with the Court and Allowed after notice to all the heirs, creditors, and other interested parties.

    Prior to the enactment of the MUPC on March 31, 2012, (the day before April Fool's Day!), all probate estates exceeding $15,000.00 were automatically Formal Supervised Probates. In passing the legislation, the Massachusetts legislature was catching up to most of the rest of the country, which had figured out that in most cases, the incidence of malfeasance did not justify the extra cost of administering a Court-supervised estate. 

    However, the lower cost of probating estates does not come without it's risks. With less court supervision and attorney supervision becoming the norm, there are more opportunities for the less-scrupulous and less-competent fiduciaries to take advantage of their position, and possibly embezzle or waste Estate monies.

    Massachusetts probate procedure requires that a Bond be filed with every case except the Voluntary Administration. The Bond can be Without Sureties, i.e. "My word is my bond."; with Personal Sureties, where two individuals personally guarantee performance by the Personal Representative; or with Corporate Surety, where a Bonding Company collects a monetary annual premium from the Personal Representative and insures performance by guaranteeing the distribution of the assets to those entitled to them. 

    Most attorneys routinely file Probate petitions which ask that surety be waived altogether. Heirs and beneficiaries routinely assent to this, often on the advice of counsel who tell them that it will save the Estate money, which will ultimately go to the Heirs. Sometimes this is a very bad idea.

    A surety bond, especially a corporate surety bond, is the best protection you have against losing your inheritance through fraud, theft, or negligence, and the cost is only a small fraction of the Probate Estate. Unless you totally trust Uncle Fred or Cousin Trudy to do the right thing handling tens or hundreds of thousands of dollars, insist on a surety bond. Several years ago, one of my past clients and his family trusted a relative to sell a parcel of Probate real estate for over $1M, and distribute the funds. Three years after the sale, after none of the relatives received their inheritance, it came out that the Executor had embezzled almost all of the money, leaving the heirs with the time-consuming and expensive job of hiring counsel to attach real estate and bank accounts, in the hope of recouping some of the monies. None of that would have been necessary if they had insisted upon Corporate or Personal Sureties. A Corporate Surety Bond in particular would have paid out very quickly. 

    Experience teaches us quickly in this line of work that even the threat of prison does not always deter criminal conduct, even if the victims are family.


Tuesday, February 2, 2016

Why do you charge for Divorce Consults?

 Some people call our office with "a quick question about divorce", or looking for a free consult. They do not realize this, but they are doing a disservice to both themselves and the attorney.

 I do not give divorce advice to strangers over the telephone, and I do not give free 30-minute consults. The reason is that I find it imperative in the area of family law to give the best advice I can, and that means getting all of the facts from the client, and analyzing their position fully. I also need to get a "read" on the client, which allows me to ascertain whether a client is hiding something or omitting something which they do not believe to be important. Legal advice is always very 'fact specific', that is, the law does not exist in a vacuum, but results from the application to specific facts. The issues that we Family Law practitioners deal with are among the most important in a person's life: marriage, divorce, support, custody, visitation ("parenting time"). We need time to talk to you and garner the facts most important to your situation. To base a Life Decision on advice given over the telephone from somebody who does not have all of the facts is foolhardy, and will not end well for the client.

A family law consultation can last anywhere from 45 minutes to two hours. As Abraham Lincoln once said: "A lawyer's time is his stock in trade." The client deserves knowledgeable, discerning advice, and the attorney deserves to be paid for his time and assistance.

Monday, January 25, 2016

Should I Ever Lie to My Lawyer?

   Took a little hiatus from writing these blogs, but I'm back now.

   I am going to limit my answer to this topical question to civil matters, especially those in my areas of Family Law and Probate Litigation, although the answers apply to all areas of civil law. In all civil matters, a party is subject to testifying, and in many cases must testify to prove their case. In criminal matters, a defendant cannot be compelled to testify against himself, so I will leave it to those criminal law practitioners to advise their clients accordingly.


     An attorney is an Officer of the Court, and therefore has an ethical obligation to not perpetrate a fraud on the Court or any other tribunal. If you tell him facts that you state are true, and they hurt your case, you cannot then tell him you are going to lie on the stand. An attorney, upon being informed that his client intends to lie on the stand, becomes ethically obligated to advise his client to only tell the truth. If the client insists on so testifying, the attorney must move to withdraw from the case rather than take part on a fraud on the Court. If the Court denies the attorney's Motion to Withdraw, the attorney may then put the client on the stand and ask, "What happened?"  He or she may not actively elicit false testimony with their questioning. In final argument before a judge or jury, an attorney may not argue testimony he or she knows to be false. In short, the judge - and probably the jury - figures out before the trial that you are lying, and discounts the testimony. Factoring in the fact that perjury is a felony, you should quickly see that there is no upside to giving false testimony.


    You are discussing intimate matters with your attorney regarding divorce or child custody. There are facts that you believe hurt your case, or you just want a better result than what the law says you are entitled to. Should you hide or misrepresent the unpleasant facts from your attorney?

   In a word: "No". Although the attorney is bound to believe what the client tells them at first, the following negative results are likely to occur:

   1.   Many unpleasant facts are known to the opposing side, and may be documented to the point that they are incontrovertible. By hiding or lying about these facts, you cause your attorney to be unprepared for the truth when it comes out. If he or she  has already unknowingly made misrepresentations to the Court based on what the client has told them, then the attorney and client are at a disadvantage at the outset, and the client's credibility is suspect throughout the case.

   2.   There are problems with every party's case. Cases do not turn on any one fact, but are more of a mosaic of all of the facts. If properly prepared, the attorney can temper the impact of any negative facts, or accentuate the other facts that favor your case. You rob your counsel of this ability if you hide the truth from him and force him to engage in damage control. You may also be raising your legal fees while damaging your case.

   3.   If you tell the truth nine times, and lie the tenth time, everybody will wonder if the other nine times you were telling the truth. The lack of candor can also adversely affect your attorney/client relationship, as the attorney may not be able to discern when you are telling the truth. If your attorney feels the need to withdraw because of the lack of trust, you will only spend more money in legal fees to bring the new attorney up to speed.

   One final note: many people with a tendency to lie think that they can get away with it in the legal setting. Think again. We do this for a living, and do not readily take the other side's word for things, especially when disputed. Attorneys are trained to uncover evidence, and judges have more experience than anybody on earth in determining whether testimony is truthful or not. What sounds plausible to you in your own head will not often survive legal scrutiny.