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.
Family lawyers take pride in the interesting nature of our work, and I like to comment that I never have a dull day at work. I received a particularly interesting phone call two weeks ago that went like this—
Caller: Can you help me get divorced by July?
Me: I can help you get divorced but July is very soon. Why do you have a deadline of July?
Caller: Because I’m getting remarried then!
Me: I’m happy to help you but you should know that Massachusetts, and most states for that matter, has a mandatory waiting period before the court will grant a divorce. And bigamy is a crime.
As I’ve explained previously on this blog, in Massachusetts, there is a mandatory nisi period, or waiting period. The wait is required (in differing durations) for both contested and uncontested divorces. Many people leave the courthouse with a Judgment of Divorce Nisi, and believe they are divorced. This is incorrect. You are not divorced until your nisi period is over. If you are married during your nisi period, you will be guilty of bigamy.
In order to stay out of criminal court, consult with your divorce lawyer about the nisi period before you remarry. And, if you must remarry before your divorce is final, as the caller above insisted, consider doing a commitment ceremony instead with no legal elements.
Yesterday, a client confided in me that she did not realize how much her divorce would change her life. She discussed how moving out of her prior home had impacted her social life, financial stability, and emotional welfare. Indeed, many people naively conceive divorce as an excision of only one unhealthy relationship, and do not properly consider the impact it has on all arenas of life. Before initiating a divorce, ask yourself the following questions:
1) If you divided up your household income in two, what would be the figure? Could you live on only half of your current household income? Are you willing to reduce the size of your home, the frequency of vacations, the amount you spend shopping, etc?
2) If you are currently unemployed, you will probably need to obtain employment in order to live without your spouse’s income. Are you able to find new employment? Are you willing to work outside the home?
3) Are you able to identify all marital assets and locate them? Do you know the value of your marital home, cars, investment accounts, retirement assets, 529 accounts?
4) If you do not currently handle your household finances, how will you budget and manage the finances once you have your own household? Do you have a financial planner?
5) Can you conceptualize how this divorce might impact you and your spouse emotionally? Are you prepared to co-parent in the wake of your spouse’s initial anger?
6) Can you conceptualize how this divorce might impact you and your spouse socially? If you both have your closest friends through your son’s soccer team, will you continue to be comfortable socializing with the soccer team parents together?
7) Are you prepared for your in-laws and other friends to initially resent you?
8) Co-parenting can be challenging. How do you feel about only celebrating Christmas with your children on alternating years?
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.
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.
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.
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 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.
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.
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.
Clients often ask me what they should say during settlement discussions in order to be effective and persuasive. I always tell them that they should first do their negotiation homework. I mean that, before the negotiation, they must identify the topics to be discussed (i.e. “alimony, child support, and time-sharing”). Then, for each topic, the client must determine their range of acceptable solutions. For example, the non-custodial parent might decide that the minimum s/he will pay is the amount determined by the child support guidelines, and the maximum is the child support guidelines plus half the cost of extra-curricular activities, half the cost of summer camp, 70% of SAT tutoring, and 70% of college tuition.
So, once you’re at the negotiation table, how do you get your spouse to agree to a solution that is within your range of agreeable solutions? When you state your proposal to your spouse, substantiate it with three supporting arguments. Psychologists have found that people respond well to arguments grouped in three. For example, you could state, “I am only willing to pay child support in the amount of $1,000 per month for the following three reasons. First, $1,000 per month is $150 more than the child support guidelines propose. Second, I give our child an allowance of $15/per week directly to her, which she uses to buy accessories and snacks. Third, I am giving you 60% of the value of the marital home.”
And what if your spouse has a negative response to your proposal? Let’s say your spouse’s vitriolic response includes personal attacks, curse words, and heightened volume. To respond to vitriol and deescalate the conversation, use “I” statements. An “I” statements takes the following form: “I feel ______ when ______ because _______.” If your spouse attacks you, you might say, “I felt attacked by that statement because it was personally hurtful and because I don’t think it moves us toward an agreement.” You will be surprised at the effectiveness of an “I” statement response.
These strategies take practice, but they will keep you calm and confident and ultimately make your spouse more likely to agree to your ideas. They also work in non-legal negotiations!