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Protecting Against a Negotiation Breakdown

I commend my clients who are determined to settle their divorces out of court.  I’ve mentioned the advantages of uncontested divorce many times on this blog.  The benefits include control over one’s divorce agreement, control over the timeline, control over the tone of the divorce, and control over the attorney’s fees. 

That said, it’s possible to waste time if you commit to negotiation and then the negotiation has a complete breakdown.  Negotiations break down for a number of reasons.  Perhaps one party learns about something new in negotiation, like a concealed asset, about which the parties cannot agree.  Perhaps one party enters the negotiation in bad faith, deliberately trying to stretch out the amount of time before the parties enter the court system for alimony purposes.  Or perhaps one of the attorneys is not negotiation-minded and discourages settlement even though the parties are in agreement.

In a negotiation breakdown, the parties must begin the divorce process with the court by filing a contested complaint and waiting for a hearing date.  In order to save time, talk to your attorney about whether you should file a contested divorce before/during negotiation and then convert it to an uncontested divorce once you settle.  This approach preemptively places you on the court’s calendar, so you do not have to wait if your negotiation breaks down. 

What Will the Court Ask You at an Uncontested Hearing?

The majority of the divorce process is negotiating with your spouse to reach a divorce settlement.  By the time you’ve signed off on the Separation Agreement, you and your spouse may have been negotiating for months or years.  Signing the Separation Agreement, however, is not the last step.  You still need the court to approve your Separation Agreement at the uncontested hearing.  What questions can you expect at your uncontested hearing?  The judge will likely ask you the following:

1) What is your name and address?  Are you married?  What is the name of your spouse?  When were you married?  Did there come a time when your marriage suffered a breakdown?  Were there any minor children born to this marriage?  (The judge asks these questions to confirm the accuracy of the information on your complaint for divorce.)

2) Have you had an opportunity to read the Separation Agreement?  Do you believe it is fair and reasonable?

3) Have you had an opportunity to consult counsel?  If so, are you satisfied with your counsel’s ability to answer all of your questions?  If not, do you understand that you may be waiving certain rights under the law, such as the right to alimony and property disposition?  Do you understand that property disposition is final and cannot be modified?

4) Have you had the opportunity to review your spouse’s financial statement?  Do you believe it is truthful and accurate? Did you have the opportunity to request and review supporting documentation?

5) Were you of sound mind when you signed this Separation Agreement?  Were you under force or duress to sign this Separation Agreement?

If the judge reviews your Separation Agreement and financial statements and believes that a provision is unfair or unreasonable, such as a waiver of child support or alimony, the judge may send you and your spouse out in the hallway to modify that provision of the Separation Agreement.  To avoid this hassle, before you sign the Separation Agreement, ask your counsel if the judge is likely to find it fair and reasonable. 

Don’t Underestimate the Power of Emotion

As I like to say, there are three types of divorce: financial, legal, and emotional.  Even if you are experiencing a divorce that feels primarily financial (i.e. a fight over the house or retirement assets), don’t underestimate the power of emotions.  Oftentimes, the emotions are fueling the financial disagreement.

My personal belief is that financial conflicts settle easier once the emotional conflicts have been addressed.  For this reason, I think it is important for parties to address one another face to face even if there is a lot of anger and hostility.  Many mediators and attorneys are scared to allow parties to face each other, because the initial direct communications can be heated, hostile, and ugly. 

However, the alternative, a stalemate, is worse.  All the time, I see people unable to settle until they’ve addressed the opposing party directly.  Sometimes, an angry spouse needs to scream and yell at their ex before they feel ready to settle.  Sometimes, a hurt spouse needs to hear a direct apology or see some type of remorse first.  And other times, a party just needs to hear, straight from the source, why that party is so insistent on a particular position.

So, if you find yourself in a scenario where you just can’t seem to settle, ask yourself if you are getting sufficient face time with the opposing party.  Have you had the opportunity to say everything you want to say?  Ask everything you need to ask?  And, if the opposing party seems unreasonable, consider whether they’ve had sufficient opportunity to address you directly.  If not, you might never settle until you interact face to face—no matter how ugly those first interactions might be. 

How to Prepare Your Case in Light of Court Budget Cuts

In the past five years, the Massachusetts Probate and Family Courts have faced difficult financial conditions and budget cuts.  Consequently, the courts might feel more chaotic to litigants.  Here are five tips for preparing for a day in court:

1) Bring backup copies of everything.  As a result of hiring freezes, many of the courts are understaffed.  The employees who are still employed are sometimes doing the jobs of one to three people, and they are likely overwhelmed.  It’s not a surprise that court files and paperwork seem to go missing more often than before.  Don’t be surprised if your case is called and the judge doesn’t have your file because no one can find it.  Bring copies of your entire file with you to provide to the judge.

2) Be nice to the staff.  Again, the staff are overworked and underpaid.  Be nice to them.  The courtroom clerks determine the order in which cases are called.  Treat them with respect and patience, and you might be rewarded by having your case called in the first half of the day.

3) Prepare to be at court all day.  You might be coming to court for a short status hearing, but prepare to be present all day.  You could be one of the very lucky cases to be called before 10:00 am.  Or, more likely, your case will be called in the second half of cases.  If you’ve gone to probate for mediation, you’ll have to wait until the probate officer and the judge are both free at the same time.  It could be a while.

4) Arrive very early.  I get to court at 8:00 am.  If I am the first person to check in and I am nice to the clerk (see #2), I just might be one of the first cases called.  The difference between arriving at 8:00 am and 9:30 am is enormous.  An 8:00 arrival might make you the first litigant to check in, whereas a 9:30 am check in puts you in the middle of the line or perhaps at the end.  

5) Negotiate in advance.  The probate department is especially understaffed these days—as if it weren’t a hard enough job already!  A few hardworking probate officers are handling cases for the entire court.  The line for probate can move very slowly.  If you want to avoid the line, come to court with an agreement in hand.


Sexual Assault of a Minor

One of the horrors that comes to the surface in family law is the sexual assault of children.  More times than I would like, I’ve had a parent call me in distress, concerned that the child is being sexually assaulted at the other parent’s home.  Here are some pointers for how to deal with such a traumatic and sensitive situation:

1) Call the Department of Children and Families (DCF) and ask them to conduct an investigation.  They will conduct a SAIN interview, which is a 1-time interview with the child.  The purpose of a SAIN interview is to keep the child from being interviewed multiple times.

2) Immediately seek legal counsel to file an emergency motion and temporarily suspend visitation with the allegedly violent parent until the court is able to reach a judgment.

3) Take the minor child to the pediatrician, who will conduct an evaluation.  The pediatrician is a mandatory reporter who will call the Department of Children and Families (DCF) if DCF has not been already notified.  The pediatrician’s records might also come in handy at trial.

4) Find a therapist or psychologist who specializes in these issues and enroll your child in therapy.  Therapy is doubly beneficial; the child will be able to work out some of the terrible things that happened to him/her, and a professional will monitor his/her mental state.

5) Although I would not advise this for the vast majority of cases, on occasion with young children, it is appropriate to take photographs of the injury.  For example, I saw a case where a 3-year old was being violently hit on his groin and upper thighs.  In that case, the photograph of his legs (which were taken while he was sleeping) were sufficient to win an emergency motion barring the allegedly violent parent from seeing the child until the court reached a conclusion.


The Unlikely Bigamist

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.

What if I want to remove my child from Massachusetts after a divorce order is in place?

If you want to remove your child from Massachusetts, you should first seek the consent of the other party.  If the other party fails to consent, you must take the matter to the court.

The court will first consider the best interests of the child and whether a move provides the child with a real advantage.  The court will consider other factors as well, such as whether there are sincere motives for the relocation and whether the removal might seriously hinder the relationship between the child and the other parent.  The court is unlikely to authorize a removal simply because the removing parent is the primary custodian.  Instead, the court will consider the full picture to determine whether the removal is in the child’s best interests, will damage either parental relationship, or will provide a real advantage to the child.