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, June 7, 2016
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.
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.
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.
SCENARIO ONE:
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.
SCENARIO TWO:
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.
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.
SCENARIO ONE:
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.
SCENARIO TWO:
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.
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.
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.
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.
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.
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