Archive for the ‘General’ Category

Every family law case should begin with a strategy. An experienced family law/divorce attorney will listen carefully and work with you to develop and implement a strategy that takes into account  the current situation, your goals and objectives, information about your spouse and the realities of the court in which your case will be heard.  Are you on the offense or defense?  Should you be the first to file or should you let your spouse make the first move? Should you push hard for a negotiated settlement? Or leave matters for the Judge to decide?

Beware of any attorney that has a one size fits all answer – such as “always be the first to file beacuse you  are the plaintiff and present your case first” or that “you should surprise and intimidate the other party”. 

Cases are different and what may be a successful strategy in one situation could be a disaster in the next.  A good family law attorney will move the case in the right direction for you!

It is common for the Courts to issue domestic relations restraining orders to protect parties in divorce and family law cases. Many attorneys and judges feel that they are often given out too easily in these types of situations. However, it is important to remember that the breakup of families is very stressful and emotional. This can often lead to physical violence. Every experienced family law attorney has a horror story to tell and the media is full of stories about people who have been harmed or even murdered in these situations. Therefore, judges tend to err on the side of caution when deciding on whether to issue a domestic relations restraining order.

The standard for obtaining a restraining order may differ slightly from jurisdiction to jurisdiction. But it usually involves some fear of imminent potential danger or harm to the party asking for the order. This party should be able to describe specific threats and/or past incidents of violence. Although the Courts are supposed to act in a gender neutral manner, it is much more common to see restraining orders issued against men than women. The actual restraining order itself usually bars or sets limits on contact between the parties and/or their children. If the defendant violates the restraining order, they are subject to criminal penalties and incarceration. The Courts take these violations very seriously and many people have been incarcerated for even minor violations.

If you have a real fear of potential physical harm being perpetrated on you by your spouse or domestic partner, it is very important that you petition the Court for a restraining order to protect you and/or your children. You should also develop a safety plan to protect yourself. The police will serve the restraining order. But they usually won’t station an officer at your residence. In extreme situations, you may need to hide or even relocate to avoid the abusive party.

child supportMost states have child support guidelines. These are formulas that the courts of a particular state will use to determine a child support amount. While the elements of the formula will vary by state, the most important factors are the incomes of the parties and number of children. The formulas will usually also include some type of adjustment for health insurance, child care costs and sometimes other expenses.

Judges are usually empowered with discretion to vary from these formulas. Depending upon the particular judge and jurisdiction, this may or may not happen. If you think that your particular situation merits a variance from the formula amount, you should thoroughly discuss the matter with your attorney and decide whether it is worthwhile to present your arguments to the Court. While the Court may not grant your entire request, the Judge may make some type of favorable adjustment to the amount indicated by the formula.

Common arguments to vary child support from state child support guidelines include tax issues, unreported income, large and unusual business expenses, prior child support orders, large and unusual personal expenses of a parent, children’s educational expenses, time spent at college, health and medical issues, other ways in which the non-custodial parent is supporting the child(ren), the amount of time the child(ren) are in the care of a particular parent, unusual travel expenses for visitation with the children, imputation of income; and the interplay of alimony and child support. Judges also usually have the discretion to determine who can claim any income tax exemptions and/or tax credits associated with the children (or at least adjust the child support amount to compensate for these exemptions and/or tax credits).

An experienced divorce attorney will be able to evaluate your particular situation, tell you the particular tendenices of an individual judge and determine what types of arguments might be favorably received by the Court.

Q/AQ: What is the most common mistake that is made in family law cases? 

A: Parties become so emotionally involved that they fail to act calmly and rationally.  These cases, by their very nature, are stressful. If a party can’t handle that stress, they are at a disadvantage and  will frequently sabotage their own case!  In practice, there are many different ways that this will manifest itself.

Some of the the most common instances of this include:

1) An overwhelming need for a “quick” resolution – even if it doesn’t make sense for the party or the family;

2) An unwillingness to comply with orders of  the Court – which almost always creates greater difficulties for the party;

3) The hiring-firing of multiple lawyers and/or the unwillingness to really listen to and implement the advice of counsel;

4) Acting rashly and impulsively and taking major actions without consulting with counsel.

An experienced family law attorney will understand that these are stressful times for his/her client and will try to keep clients calm or recommend therapeutic help when appropriate. Parties who find themselves overwhelmed by the process may need to seek professional counseling.

There is an old saying in the family law profession: “In criminal cases you have bad people on their best behavior and in divorce cases you have good people on their worst behavior.” 

Parties need to understand that emotional behavior is not the  path to the successful resolution of a family law matter.

aggressive lawyerThere is a fine line in divorce and family law between assertively pressing your case and literally fighting about each and every issue all the time. Recently, I was asked by a family member to refer her to a good divorce attorney (both parties were too close personally to represent her myself). I considered several colleagues who are very competent, but settled on giving her the names of two lawyers  in particular. In discussing these choices with the family member, I told her that in my opinion there’s a fine line between assertively and aggressively representing a client and being so obnoxious and aggressive that an attorney only makes the situation worse for the client and the family. In any particular case, this line can be easily crossed. I thought these two individuals wouldn’t back down, but they also weren’t likely to create conflicts unnecessarily.

Unfortunately, there are many overly aggressive lawyers, and some members of the public think this is a great thing. The reality of the situation is that most family law and/or divorce cases settle in the end and only a small percentage go to trial. If there are children involved, the parties almost always will have to maintain some type of working relationship after the litigation. In many areas of family law, there is room for win-win arrangements that accrue to the benefit of both parties. If the attorneys are constantly battling and fail to really communicate the opportunities for these arrangements are lost.

If the matter does go to trial, there are usually limited areas of disagreement and it is also helpful if the parties can agree on some issues if only for the reason of limiting costs.

Some attorneys promote the image of being “aggressive” – which often means they are looking to run up a bill and usually leave their clients angry and their families and children in ongoing turmoil. No matter how angry or upset you are with your spouse, don’t make the mistake of hiring such an attorney.

This is not to say that your attorney should be a passive wallflower. But, you should always keep in mind that there is a fine line and that your attorney’s job is to do what’s best for you, the client. A good family law attorney willl be assertive and aggressive in representing your interests, but will choose his  (and your) battles wisely.

splitting personal propertyIn a divorce, fairly dividing the relatively small value items of personal property (all that junk in the house) is an area where the legal system often performs poorly. Oftentimes, the monetary value of these items doesn’t justify the legal costs incurred in their retrieval. In Court, the division of these types of items is usually the last thing to be addressed. Every attorney has a horror story to tell about the case where many torturous hours were spent between two litigants arguing over every small piece of furniture, silverware and tools.

A spouse who is no longer residing in the marital home (either because they voluntarily left or they were put out by the Court) is at a distinct disadvantage in identifying, dividing and retrieving these types of items. If you can divide these small items between yourself and your spouse without the involvement of the Courts you will save a great deal of expense and hassle. If you cannot do this on your own, start by preparing a complete and comprehensive list of everything that you want to get back. Don’t wait to go to Court. Show that you are serious about retrieving these items and that this is important to you by having your attorney forward the list to your spouse’s attorney before you go to Court. Don’t wait for the last minute and be faced with a decision as to whether to settle the case or fight for the bed! Also, don’t tie up valuable attorney time by wasting time on low value items.

Be flexible and be willing to trade-off different items. Don’t ask for all the televisions in the house – but try to get at least one. Try to get something in each class of item – a vcr, a stereo, a dvd player, some silverware, plates, etc. This way you won’t have to start from scratch. The same with furniture – divide it room by room. If you don’t have space for an item or it will be difficult to move, seriously consider whether you really want it back. Do you really need a lawnmower and garden tools when you’re moving into an apartment? If you are not allowed back in the house because of a restraining order – ask to inventory the items in advance in the company of a police officer (called a detail – and be prepared for a cost – usually a minimum of 3-4 hours). If you have pictures with sentimental value to divide and cannot agree, offer to split the costs of making a second set (this is usually what judges will do anyway). Decide what you really need and what you can live without. Lastly, seize the opportunity to reduce the clutter in your life and get a fresh start!

bad-economySince the economic downturn of 2008, many have reported that the divorce rate is slightly down because of the economy. This is true. However, the Courts and attorneys that practice family law are busier than ever because people are reopening old support orders and filing for contempts as jobs are lost, incomes decrease, and asset values decline. Additionally, cases are being fought and litigated much harder and more aggressively as parties fight over an ever decreasing pie. One of the effects of the changing economy was the Massachusetts 2011 Act Reforming Alimony in the Commonwealth (read more).

For some people (usually men), this is a great time to file for divorce. If you are already paying alimony or child support you might even consider filing for a modification. Alimony and child support orders are almost always based on current income. If you are unemployed or your income has decreased substantially, alimony and/or child support should reflect this and you should be paying less. Many people fail to have the Courts reduce their support obligation when they lose their jobs or their income decreases (it doesn’t automatically go down – you must go back to Court!) and end up with large arrearages. If your income subsequently increases, the party receiving the support will have to refile and bring you back to court to increase the support. Many (if not most) support recipients fail to do this. They usually don’t even know that the income of the payor has increased! I have seen many cases where support orders are based on incomes that are a fraction of the payor’s current income.

This becomes especially important in alimony cases. Depending upon the judge, alimony may be particularly difficult to change. If the alimony order was based on a period during which the payor’s income was low, it may be very difficult for the recipient spouse to obtain an increase.

Lastly, the value of assets that are usually retained by men in property settlements (such as a family business or stock options) may be temporarily depressed in a slow economy and therefore the wife would receive a smaller share of other assets to accomplish property division.

broken-homeMany people are under the misconception that they are required to “legally separate” before they can get divorced. In most jurisdictions, this is no longer required. If you want to get divorced, you should file for a divorce and not a legal separation. Filing for a legal separation first will only increase the time and expense before the divorce is final.

However, we do run into several recurring situations that lend themselves to a filing of a separate support action (legal separation).

The first and most common situation is when the spouses have separated and one party needs to get support (child support and/or spousal support) from the other – but doesn’t want to file for divorce.

The second common reason is when a spouse has a drug and/or alcohol problem and the spouse filing for legal separation wants to send them a strong message “clean up your act or else”.

Although less common these days, devout Catholics will file for a legal separation because they don’t believe in divorce.

A legal separation should also be considered when the marriage is a little short of ten years. At the ten year mark, a spouse is entitled to one-half of the other spouse’s social security upon retirement (if they haven’t remarried and it’s more than they would be entitled to on their own social security claim).

There can also often be various strategic reasons to file for a legal separation instead of a divorce (such as if the other spouse has a new partner and will probably want to accelerate the divorce process).

Lastly, you should be aware that Courts will usually not divide property as part of a legal separation (although this doesn’t prevent the parties from agreeing to divide property between themselves) and that in most jurisdictions it is possible to counterclaim for divorce when one party files for separate support. Therefore, you might have effectively filed for divorce anyway!

toughtfulwriterOf course there are any number of things to consider prior to filing for divorce. Here are a few key items to reflect upon.

1) The great majority–perhaps as high as 95%–of all divorce cases are settled before going to trial. Many cases are resolved through mediation or a joint petition for divorce in which both parties agree to all terms.

2) What are your most important long-term goals in the divorce? Before filing, create and understand your goals. This will help you to make better decisions and get where you want to go in the end.

3) Focus on what will be important in five years, not what seems hugely important now but may fade in a few years. Don’t get bogged down in details, money which won’t matter in a few years, or items like the stereo, computer or flatscreen TV.

4) Do you really want to represent yourself? You might think you’ll save big on attorney fees, but you’ll need to get all the relevant information and legal forms, and you may well miss important issues an experienced attorney will be quick to point out. At least consider hiring an attorney on an hourly basis to consult with on special issues.

5) Be Organized! Get your papers in order. Write down questions for your lawyer. Perhaps ask a trusted friend, relative, or your accountant to help you organize.

6) Look (and ask) before you leap: don’t jump to conclusions or rush to a decision. It takes time to build a reasonable, fair and equitable settlement. Because you will live with the results of your divorce for the rest of your life, take your time, talk to your support network, consult with your attorney, and do not rush into things.

when to call your divorce attorneyAfter some time mulling over getting a divorce from your spouse, you have decided to take the plunge and call a family law or divorce attorney. Understandably, you may be nervous, anxious, excited, angry, frustrated, or any number of even conflicting emotions. After all, this is one of the biggest steps you can take in life. So what happens when you pick up that phone and call?

Let’s assume you’ve done some investigation, looking into different law firms, maybe checking online reviews or getting referrals from friends and family. Then when you call, you should expect the office staff or attorney to be empathetic and someone who will comfortably ease your anxiety and relieve your initial stress in making the call. Beyond that initial receptivity, what should you expect?

First of all, you should expect confidentiality, and know that the law office will never disclose to your spouse or anyone else that you made the call. The confidential nature of your call is paramount.

You should expect the person on the other end of the line to ask a few basic questions, including your name, your spouse’s name, and perhaps your spouse’s attorney, if he or she has one. Other questions include asking where you live, how you heard about the office (website, ad, referral, etc.), and then on to the big question of the type of legal counsel you are seeking, such as initiating a divorce proceeding, modifying an existing agreement, or inquiries regarding child custody or support, alimony, and other matters. If you are seeking to initiate a divorce proceeding, the office may review fundamental options with you, briefly reviewing these options so you may best proceed. This may include a discussion of the differnet options of litigation (contesting the divorce in court), mediation (to resolve all matters), and collaborative process (each party agreeing to resolution outside of court).

Following this initial conversation, the lawyer or his/her staff will schedule your first in-person consultation at a time and place convenient for you.

The oft-cited statistic has it that 50% of US marriages end in divorce, rather than the death of a spouse (though the actual figure is between 40% and 50% depending upon statistical methodology applied). Does this make divorce a cause to celebrate, to rejoice in finally being free from the constraints of a failed marriage? Or rather a cause to lament, to decry the sorry state of our society? Of course, the truth is neither and both, with a wide range of grey inbetween.

The reality is extremely subjective, varying from person to person, and all parties involved, not merely the spouses. One spouse may rejoice, the other regret. And have you ever known children of a divorce throw a party, thrilled that their parents are finally separated (absent parental abuse, anyway)? No, of course divorce is a serious matter, a venture not lightly entered into, a life-changing course rivaled by few other events in one’s life. It is sage advice to consider all options before choosing divorce as the only recourse in a failed marriage. One’s marriage may not be failed after all, simply faltering, and steps may be taken to correct the course, through counseling and mediation among other measures.

But if divorce seems your only recourse, then it is imperative that you seek the legal advice of an experienced divorce attorney who can guide you through the maze of issues that arise with divorce proceedings, many if not most of which you may well not be aware of before commencing your divorce process. Consider how much of your life, public and private, financial and material, will be analyzed and debated in a court proceeding. In fact, this is largely why 90% of all divorces are settled out of court; spouses reach agreement without courtroom drama through the aid of legal advice and mediation and so can come to terms without court proceedings.

The information contained in this blog is for educational purposes only and is not legal advice. The use of this Blog does not create an attorney/client relationship between you and the Law Offices of Barry R. Lewis. If you are considering divorce or if you are involved in any legal matter, you should hire an attorney.

Massachusetts Divorce and Family Law
Attorney Barry R. Lewis — Divorce Law Specialist
Locations Throughout Eastern & Central Massachusetts :: 508-879-3262