Under Rosenberg v. Merida, if a payor parent receives SSDI and the children receive the derivative dependency benefits, the dependency benefit must be added to the payor parent’s income for child support worksheet purposes.  Then look at the figure the child support worksheet calculates.  If the dependency benefit is greater than the child support calculation, the payor parent does not need to pay any additional child support.

If the dependency benefit is less than the child support calculation, subtract the dependency benefit from the child support calculation.  The remainder is the amount the payor parent must pay for child support each week.   

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.

Almost all of the time, divorces occur in state court.  To determine if Massachusetts will hear your divorce case, consider the following:

1) If the grounds for divorce (i.e. irretrievable breakdown or desertion) occurred in Massachusetts and at least one of the parties currently resides in Massachusetts, the divorce can be filed in Massachusetts.

2) If the ground for divorce occurred outside Massachusetts, the divorce can be filed in Massachusetts if at least one party lived in the state for at least one year before filing.

If you don’t fit into either of these scenarios, consult with an attorney on where to file your divorce.  If you do fit one of these scenarios, you will next need to figure which county’s courthouse to use, since each county in Massachusetts has a Probate and Family Court.  To determine venue, consider the following:

1) If a party still resides in the county where the couple last resided as husband and wife, the divorce shall be filed in that county.

2) If neither party still resides in the county where they last resided as husband and wife, the divorce shall be filed in either county in which a party currently resides.  

2) Gather every piece of documentation you can.  Attorneys spend a lot of time and money fighting over unknowns.  If you can prove your salary, your spouse’s salary, the value of all assets, the value of all liabilities, and all expenses, you will cut down on the amount of fighting and time spent in your divorce.

3) Try to resolve some things directly with your spouse.  For example, if you know you and your spouse really only disagree about the disposition of the marital home, consider sitting down with your spouse to work out everything else.  Then your attorneys will only charge you for litigation over the marital home.

4) Find an attorney who will do Limited Assistance Representation.  This allows you to represent yourself for some of the easier motions and hearings, and only pull in your attorney for the more challenging issues. 

5) If you live in the state of Massachusetts, complete the Financial Statement on your own before you even hire an attorney.  This will save time, and your attorney can’t bill you as much for the completion of the financial statement when you give him or her a draft.

6) Finally, think before you call your attorney.  If you are fighting with your spouse about whether the custody exchange should occur at 5:00 pm or 6:30 pm this week, is it really worth calling your attorney who will charge you for that conversation? 

In Massachusetts, a third party can petition the probate courts for temporary and permanent guardianship.  Like traditional custody proceedings, the petitioner is required to give all parties notice of the proceeding.  Then all parties are called into court for a hearing.

So what makes the court grant guardianship to a third party?  The court will look at whether the parents are unfit and whether it is not in the best interests of the minor child to remain with the parents.  Parental unfitness is a high standard to meet.  Concern that a parent is sloppy, runs late, or is a poor communicator does not meet that heightened standard.  Evidence of a parent’s use of heroin or evidence of the parent’s exposure of the child to sexual assault is more likely to qualify.

If you are petitioning for guardianship, you should work with an attorney to compile your evidence and ensure that you can prove unfitness.  If your attorney advises you that you’re not in a position to meet your burden of proof, ask the parents if they would consent to your guardianship instead.  

Prenuptial agreements must be given sufficient time for thorough review.  The court wants to be sure you were not under timeline duress when you signed the agreement.  For example, if you signed it three days before the wedding, you were likely under the duress of potentially cancelling a fully planned wedding after guests had begun travel to your wedding.  You should execute the agreement months before the wedding, not days or weeks beforehand.  It is important that you had enough time to carefully scrutinize the language and content of the agreement.

The court will be unlikely to enforce an agreement where both parties failed to have independent legal counsel.  Each party must have his or her own attorney to draft or review the agreement and make sure it meets that party’s needs.  Each attorney can only counsel his or her client.  Counseling both parties is a conflict of interest and malpractice.

The court will probably not enforce a prenuptial agreement unless the parties fully disclosed their financial assets to one another during negotiations for the prenuptial agreement.  You should speak with your attorney to ensure that your disclosure constitutes a full disclosure.  If your assets are complicated, your counsel might advise you to have your financial planner prepare the financial statement on your behalf.

In conclusion, if you and your betrothed have decided to execute a prenuptial agreement, make sure you are creating one that is enforceable.  It should be executed in advance of the wedding with two independent attorneys and with the full disclosure of each party’s financial circumstances.  Discussing finances and marital goals in advance of the wedding has a dual purpose—it leads to a prenuptial agreement AND increases the likelihood that you and your spouse will be on the same page during your marriage. 

2) Talk to your spouse about the cost of divorce.  If you litigate, you might be looking at a $40,000.00 trial per person.  If you negotiate, the cost might be closer to $2,500.00 per person.  Choose negotiation, mediation, collaborative divorce or litigation jointly so you are on the same page about the expense of divorcing.

3) Set divorce priorities.  Is consistency for your children your top priority?  Is an equitable distribution of retirement assets your concern?  Or is affordable housing worrying you?  If you are open about your concerns and you jointly prioritize, you will eliminate some of the friction.

4) Be patient.  Your spouse might need a few weeks or months to process the news, and might be unwilling to negotiate immediately.  Generally, there is not a rush.  In fact, many courts have mandatory waiting periods before they will issue a divorce.

5) Work together to collect your financial documentation.  Compile your tax returns, bank statements, and all other financial data from your marriage.  Make copies so you each have a full set.  If you are in agreement about the identification of assets, you are one step toward the distribution of assets. 

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.  

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. 

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.