All posts by AlisonSilberEsq

When in Doubt, Seek Counsel

Last week, I met a new client who presented as articulate and sharp.  I pulled his file at the courthouse, and learned that he’d filed over twenty complaints for modifications pro se (without the assistance of an attorney).  Many of these motions led to motion hearings, and he wound up appearing before his judge again and again in the past year.

When I asked him why he’d filed so many motions, he said he was just trying to get a final judgment of divorce.  This client is a perfect demonstration of the need for counsel.  He was seeking an obtainable outcome in the entirely wrong way.  His lack of knowledge led him to pursue an inappropriately high number of complaints for modification, which wasted the court’s time repeatedly.   His actions likely caused his judge to develop a bias against him, and potentially set him up for sanctions for frivolous filings.  And, to top it off, he still hadn’t received his final judgment of divorce.

When in doubt, seek legal counsel.  The stakes are high—you do not want to turn your judge against you or face sanctions.  Even a one hour consult could have prevented this client from over-filing the wrong paperwork.  

Parenting Education Courses (Standing Order 4-08)

In Massachusetts, divorcing parents of minor children are required to complete a parenting education course.  A number of parenting classes are available around the state.  The purpose of the parenting education course is to ensure that all parties vying for custody or time-sharing are aware of the needs of their children.  Even amicable, experienced parents must complete this course for the court’s peace of mind.

If a party cannot complete the course due to incarceration, language barrier, or military service, they must file this motion.   If granted, the court may allow the party to attend an online course.

Parties must pay for the parenting education course.  If a party cannot afford the fee, the party should file an Affidavit of Indigency with the court.  If granted, the Commonwealth of Massachusetts will pay the cost on behalf of the indigent party. 

What to Expect on DOR Day

If you file a motion for a modification of child support in Massachusetts, you are likely to be called to court on a DOR (Department of Revenue) day.  Before your hearing, the DOR will mail you a notice of the hearing, the courthouse location, and the financial statement.  As I’ve said repeatedly on this blog, you must carefully complete the financial statement.  If you are going to make copies, use pink paper.  (This helps the courthouse keep the filed financial statements separate and unavailable to the public.)  Sign your financial statement on the day of the hearing.

At court, you will first check in with the DOR table.  They are located in different locations in different courthouses, but the security guards, bailiffs, and courtroom clerks can direct you.  At the DOR table, the DOR representative will ask you if all parties are present and if all counsel is present.   DOR will also collect your financial statement and the opposing party’s statement.

You should then be prepared to wait a long time.  There are a limited number of DOR attorneys, and they must meet with a full docket’s worth of clients.  It could take hours for DOR to call your case, so bring a book or newspaper. 

At long last, a DOR attorney will call your case and you and the opposing party will meet with the DOR attorney.  The DOR attorney is not a judge, an attorney for you, nor attorney for opposing party.  Instead, the attorney represents the Department of Revenue.  The attorney will review both financial statements and ask you some background questions.  The DOR attorney then applies the Child Support Guidelines to the facts, as you’ve presented them, and determines what the payor parent should provide the recipient parent weekly.  You and the opposing party can stipulate to this amount and sign an agreement, in which case you’ll likely be done and free for the day.

If you do not agree to DOR’s calculation, you will need to wait (a long time) until a judge is available to hear from both parties and the DOR attorney.  The DOR attorney will advocate for his or her calculation, so your own attorney will need to make a strong argument to the judge for deviation from the same.

How to Keep Post-Divorce Costs Low

It might surprise people to hear that the bread and butter of my practice is post-divorce litigation.  Although I have a number of clients initiating divorce, the majority of my clients are already divorced.  They’re back in court to change a separation agreement or to enforce a separation agreement.  Post-divorce litigation is exhausting, expensive, and frustrating.  Here are my tips on how to keep your post-divorce costs low:

1) Consider every worst-case scenario and provide for it in your separation agreement.  For example, if Dad has a history of alcohol abuse and has been sober for six years, your separation agreement should include a provision for what will happen if Dad starts drinking alcohol again.  Will he lose time-sharing?  Legal custody?

2) Scour your separation agreement for holes.  Let’s say there are two minor children and your separation agreement provides that each party will claim one child on their taxes.  Fix your separation agreement so it identifies which parent will claim which child.  This way the parents can’t fight about claiming the younger child, who will bring a refund for a longer period of time.

3) Unless absolutely necessary, your separation agreement should not require you to renegotiate anything in the future.  I once saw two parties go through a multi-year trial because their separation agreement stated that Dad would pay the children’s “reasonable extracurricular costs, as the parties agree.”  Mom thought this meant Dad should pay for son’s private baseball coaching, son’s baseball camps, daughter’s cheerleading camps, daughter’s SAT preparation, and daughter’s college tour visits.  Dad disagreed. They spent far more in legal fees than the cost of all these extracurricular activities combined.

4) Pay your child support and alimony.  If you don’t pay it, you’ll be back in court for enforcement proceedings.

5) Speak to your attorney about filing modification actions.  A modification requires a material change of circumstances.  Your attorney will have a better sense of whether a material change of circumstances actually exists. 

How is child support determined?

As I’ve discussed previously on this blog, child support is a formula with a limited number of variables.  Your attorney, the Department of Revenue’s attorney, or the court will employ the formula. 

In Massachusetts, the first variable is weekly income.  The court needs to know the weekly income of the payor and the payee.  People with traditional employment can use their last three pay stubs and W-2s to prove the total income.  People who are self-employed should prepare for a bit of tension over their income, since opposing counsel might request their company’s books and accounts, a deposition of the bookkeeper, and tax documentation.  Beware that commissions, royalties, bonuses, dividends, veteran’s benefits, unemployment, pensions, rental income, and more count as income.

The next variable is weekly child care costs.  This figure must be the reasonable child care costs due to a party’s gainful employment.  In other words, a stay-at-home parent is probably not going to receive a credit for a weekly nanny, unless the attorneys can make an argument for a deviation from the regular child support formula.  This figure is then deducted from the gross income of the party who pays the child care.

Health insurance costs for the minor children are also deducted from the gross income of the party who pays health insurance.  The party who covers the health insurance should provide a print-out from their human resources department indicating the exact cost to cover the children.  This is not necessarily the amount the party pays.  Instead, it is the amount the party pays minus the amount the party would pay for an individual, non-family plan.  The party who covers insurance should similarly provide the figures for dental and vision insurance for the children.

The final variable is other child support obligations, which are only relevant where there is a legal obligation to pay child support.  To get credit for child support, you must have a standing order to pay.  Most likely, you will not receive a full credit for support where you are overpaying a support order, paying support to an emancipated child, or paying for a child whose support has never been adjudicated. 

Financial Statements: The Importance of Being Earnest

Before many hearings at the Probate and Family Court, parties must complete financial statements on pink paper.  There is a form for parties who earn $75,000 or less, and a different form for those who earn more.

The financial statement is crucial to beginning negotiations.  The court needs to know what to divide and what is available for child support.  The opposing party needs to check that your assertions on the financial statement reconcile with their discovery.

Some clients are hesitant to provide their data on the financial statement but there are a number of reasons why it’s important.  First, this document is often the court’s first assessment of your credibility.  If you are caught in a lie on the financial statement, the court will be unlikely to believe you on other issues.  Second, it is easy for the opposing party to use a fraudulent financial statement to impeach you.  They can take a limited deposition on your financials and then quickly corner you based on your conflicting financial statement and deposition.  Third, it saves you time and money to be forthcoming.  If you fail to provide correct financial information upfront, you will spend considerable money fighting over discovery.  Finally, your attorney must sign the financial statement in addition to you.  It is against attorneys’ ethical code, and a risk to their career and reputation, to help a client conceal assets. 

How to Succeed During a Cross-Examination

In an evidentiary hearing or trial, each party has the opportunity to present witnesses.  Each witness will receive direct examination by the attorney who called him or her, cross examination by the opposing counsel, and then a redirect examination again by the attorney who called him or her.  Clients are apprehensive about cross examination, as they should be, since it is a storm of questions from a hostile interrogator who is trying to trap you in a lie (legally known as impeachment).  Here are tips on how to succeed during cross-examination:

1) The Golden Rule—When you are in doubt, say “I don’t know.”  If you are concerned that your memory is fuzzy, say “I don’t know” or “I don’t remember.”  This makes it hard for opposing counsel to catch you in a lie.

2) Stay calm and don’t show anger.  The judge is paying attention to your answers as well as your demeanor.  If you feel yourself getting heated, take a deep breath and count to five before answering each question.

3) Although the witness gets interrogated, the witness does not have a right to ask questions back to the hostile attorney.  You can ask clarifying questions, but you cannot ask substantive questions.  Instead, you should rely on your own attorney to be sharp enough to return to such topics on redirect examination.

4) If opposing counsel asks a yes/no questions, you need to give a yes/no answer.  If you say anything more, the opposing counsel will move to strike your answer as non-responsive. 

5) If you feel intimidated by the opposing party, it is okay to not look them in the eye.  Instead, make eye contact with the judge or your counsel.

6) It is okay to ask for a break if you’re feeling stressed or emotional.

7) It is okay to cry on the stand.  This is why family law courtroom clerks always have tissues on hand.

8) Ask your counsel to prep you by role-playing a hostile cross-examination.  This will desensitize you to the uncomfortable situation of getting interrogated by an unfriendly opponent.

9) Do not answer if you don’t understand the question.  Instead, ask for clarification. 

10) When an attorney stands up to object, you need to stop speaking immediately.  You cannot resume your testimony until the judge rules on the objection.  The judge will either deny or sustain it. 

11) You can only speak when asked a question.

12) The judge might interrupt opposing counsel and begin asking you questions herself.  This is common practice and should not worry you.

Divorce in the Facebook Era

Since Facebook has become a constant in Americans’ lives in the past decade, it should be no surprise that Facebook is also a constant in Americans’ divorces.  Every now and then I’ll hear about a case where the client discovered their spouse’s infidelity via Facebook, which triggered the divorce.  Mostly, however, Facebook is useful once the divorce proceeding has begun.

Child Support
Child Support is based on a formula, which requires the accurate identification of each party’s weekly income.   In the best scenarios, parties are forthcoming with their tax returns and pay stubs, and it is not difficult to accurately determine weekly income.  In challenging scenarios, parties are obtuse, do not file taxes, and allege they have no income.

Imagine a situation where Mom has not filed her taxes in the past four years.  She alleges she is unemployed due to a disability and unable to work.  Yet, on Facebook, there are multiple pictures of Mom at her sister’s daycare center, helping supervise the children and care for them.  These pictures can help Dad prove that Mom is employed under the table by her family.  Dad will then obtain a recalculation of child support based on Mom’s unreported earnings and the Court might sanction Mom.

Or consider a case where Dad stops paying for the life insurance policy on which the children are the beneficiaries because he alleges the economy has hit him hard.  Then, Mom finds Facebook pictures or status updates from his recent vacation to Aruba.  The Court is going to want to know how he was able to afford this vacation if he is unable to maintain his life insurance policy.

I’ve seen situations where the parties receive an individually-tailored custody arrangement.  For example, there might be a case where Dad receives weekend visitation as long as his brother, who is an acknowledged drug abuser, is not present.  As you can imagine, Dad will be held in contempt if Mom presents Facebook photos of the children hanging out with Dad and Uncle over the weekend.  Dad will also likely lose his unsupervised weekend visitation. 

Courts determine custodial arrangements based on the best interests of the child, and health and hygiene are factored into that analysis.  Let’s say Mom throws a party at her house, and her friends post numerous photos of the party on Facebook.  In the photos, one can see pictures into the children’s room, in which there is water leaking from a pipe, mold growing on the ceiling, and perishable food strewn about.  If the opposing party presents these Facebook photos, it is likely that the custodial arrangement will be reconsidered.

Finally, almost all judges emphasize the importance of not bashing one’s ex in front of the children.  Nowadays, this extends to Facebook.  It is crucial that you do not badmouth your ex anywhere your child can hear or read. 

Claiming Children on Your Taxes

I’m often puzzled by how much time clients spend fighting over which spouse gets to claim the children on their post-divorce taxes.  While a Separation Agreement should not specify who files as Head of Household, a Separation Agreement may specify who claims the children as dependents.  Many clients seem to believe that claiming a child will reap them significant financial award.  While clients may be correct that claiming a child impacts tax credits, claiming a child may not provide quite the financial windfall the client is anticipating.  Accordingly, I advise my clients to contact their CPA before negotiations to determine how much money claiming a dependent really awards them.  Clients might be surprised to learn that it’s less than a $1,000.00.  In light of that number, it doesn’t make sense to argue for hours over it in an expensive mediation.

I also advise my clients to think creatively about solutions.  If there are two children, perhaps each parent will claim one child.  Or, if there is only one child, perhaps one parent can claim on even years and the other parent can claim on odd years.

As I’ve stated previously on this blog, it’s crucial to enter negotiations informed and prepared.  Prepare yourself on this topic by asking your CPA for the true value of claiming your child(ren).  You might be surprised by his or her answer.   And, if you don’t have a personal accountant, now is the time to secure someone.  Look for someone like Susan Miller at Aurora Financial Advisors or Marc Bello at Edelstein and Company, both of whom are experienced in divorce finances. 

You’ve Been Served: Understanding Service and Its Meaning

Clients report that being served with a divorce summons is one of the most upsetting stages of divorce.  In Massachusetts, the service must be in-hand service, which means that the service processor cannot leave it for you at your residence.  Instead, the sheriff or constable must find you at your house, at your work, or potentially at a relative’s friends and serve it to you personally.  Your neighbors, colleagues, and relatives might witness the service, which might cause humiliation, concern, and anger. 

It is important for clients to realize that service is not necessarily a scary thing.  It is required by law, and thus you should not understand it as one more example of your spouse’s insensitivity.  Your spouse is merely following the legal requirements in order to initiate the divorce proceeding. 

Many clients are alarmed that their spouse initiated the proceeding, rendering the spouse the plaintiff.  Generally, this should not be a point of worry.  Unlike a criminal proceeding, where only the defendant can go to jail, in a divorce it is not necessarily bad to be the defendant.  You should speak to your attorney about whether or not you want to file a counter-complaint, in which you can identify your own grounds for the divorce.  You should also strategize with your attorney about how to use your position as the defendant to help you present evidence at trial, since the plaintiff introduces his or her case before the defendant.