Posts Tagged ‘Family Law’

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.

custody rights of same sex couplesAs marriage equality continues to proceed in the USA, and especially here in Massachusetts, the first state to legalize same sex in the nation, many issues previously considered only as mother/father, heterosexual in nature now must be considered from the perspective of same sex couples. This came to light as regards the custody of a non-biological, same sex parent in the case of Della Corte v. Ramirez a little over two years ago. In this case, the biological mother, Gabriella Della Corte, argued that her ex-spouse had no parental or custodial rights because she was not the father of the child, who was born through artificial insemination. Angelica Ramirez, her spouse, argued that she indeed was the parent of the child and should be granted custody.

The court found in favor of Ramirez, granting her joint custody of the child, stating in their ruling that Ramirez was the legal parent of the minor child. This sets a precedent in Massachusetts, establishing that as regards paternity, custody, and visitation, there is and should be no difference between heterosexual and same sex parents. This follows Massachusetts law that, regardless of gender, marriage carries the same rights for both parties. Therefore all laws which reference “husbands” or “wives” to be interpreted simply as “spouses,” and that Massachusetts family court proceedings should make no distinction based upon the gender of the parties, but rather paternity, custodial, and visitation rulings should solely reflect the best interests of the children involved.

A separation agreement is an agreement between two married people to live apart for an unspecified period of time, perhaps forever. Generally, a separation agreement covers alimony; child support and custody arrangements if there are children; payment of bills and management of separate bank accounts; and may also determine division of property if the separation appears permanent. If the couple reconciles, the separation agreement is voidable (can be cancelled) by the parties. However, most separation agreements are interim agreements to serve between the time of separation and the eventual divorce of the parties.

This raises the question of what becomes of the separation agreement upon a judgment of divorce. Separation agreements are said to either “merge” or “survive” divorce, meaning that either the agreement is merged into (becomes part of) the divorce judgment, or, while its terms are incorporated into the divorce judgment, the agreement remains a separate and independent legal contract.

When a separation agreement is “merged” into a judgment of divorce, its terms are modifiable by the court (which retains the power to revise or modify its previous judgment). Thereafter, the “merged” separation agreement has no separate legal standing.

However, when a separation agreement “survives” a decree of divorce, it stands as a contract between the parties and can be enforced in civil proceeding in Superior Court or Probate Court, and any violation of the agreement is enforcible under the contempt power of the Court.

In many cases, it is not as simple as “merge” vs. “survive” as some parts may be treated separately. In almost all circumstances, child related provisions merge and/or change. Property division usually survives. Alimony and, increasingly, health insurance provisions may be handled in a merge.

We all know that divorce is one of the hardest experiences in life, especially for young children who cannot understand why mommy and daddy are suddenly separated and their family life torn asunder. There are altogether too few resources to help children adjust to these drastic changes, although more are appearing each year. Sesame Street now offers a Divorce Toolkit for Parents and Children which may provide some valuable assistance for you and your young family,entitled Little Children, Big Challenges: Divorce.

The Toolkit includes components for Caregivers and Families, a Storybook, Songs, Downloads, and Videos. You might want to review these components yourself or with your spouse before presenting them to the kids. Simple activities such as a divorce coloring book can help your children adjust in this trying time.

Consider some stress reducing guidelines, especially when children are involved:

    • Help your kids manage their feelings: Encourage them to openly discuss their feelings — positive or negative — about what’s happening. Talk to your children, let them know that they are not responsible for the divorce. How much detail you go into depends in part on how old and how mature the children are, but regardless of age, they need to know that the divorce is not their fault, and that they will not be losing either parent. Discuss the ways in which custody and visitation will work.
    • Keep conflict and argument aways from the kids; disrupt their lives as little as possible. Maintain a calm attitude and avoid conflict, as parental fighting is very stressful for children. Take divorce conversations outside the home or discuss these matters only when the children are not home.
    • Don’t use your kids as go-betweens. They should not feel like pawns nor be manipulated by either parent. Do not use children to send messages to your spouse.
    • Seek support from friends, church, or organizations like Parents Without Partners, or a therapist with experience with children of divorce, someone that the children can talk to and who can help them address any guilt they feel, however unfounded, about the divorce.

Generally, the finalization of a divorce will revoke a will or at least nullify any provisions in your will in favor of an ex-spouse. Depending on the law of your particular jurisdiction, it is unlikely that the mere filing of a divorce will abrogate the rights of your spouse. Therefore, if you have concerns about the estate planning ramifications of your divorce proceedings, you should discuss them with an experienced divorce attorney.

If you have a will, it may be a good idea for you to change the beneficiary clause, such that any proceeds will go not through your soon-to-be-ex, but instead go directly to your children (if you have any) or to the executor of your estate. Likewise update the beneficiaries for life insurance, IRA, or other financial instruments.

If you do not have a will, discuss with your attorney the benefits of preparing your will prior to the divorce. Your attorney may assist you in drafting the will, or it can be as basic as one you obtain online. Your will should in part designate who should care for your children should you and your spouse pass away at the same time. The will should be notarized, with witnesses as required. (Note that a notary public does not testify to the content of the will, but only to the fact that you have signed it.)

Preparing your will prior to your divorce is especially beneficial if you have minor children, which leads to the question of talking with your lawyer and with a good friend or relative about assuming guardianship of your children should you pass away before they reach the age of majority.

Also discuss with your attorney the benefits of having a living trust in addition to a will. Your divorce attorney, being a specialist in divorce and family law and not in estate planning, may refer you to a colleague who does. Generally speaking, a living trust avoids probate for those assets listed in the trust, but it does not avoid death taxes.

There are generally two types of child custody — legal custody and physical custody. Legal custody refers to whomever makes major life decisions for the child (usually health, educational and religious decisions, although is is important to note that that, without the prior permission of the other parent or court, even a parent with sole legal custody can’t remove the child from Massachusetts permanently). Physical custody refers to whomever has the child “physically” on a day-to-day basis. One issue that frequently arises is that of joint physical custody, where custody of the child is shared by both parents. This involves many aspects, such as visitation vs parenting plans and whether joint physical custody is beneficial or detrimental to the child.

Commonly, both parents will seek sole physical custody during a separation or divorce, and the court must decide what is in the best interest of the children. A compromise solution would be for the parents to settle for joint physical custody, which typically means the child will spend an equal time with each parent, perhaps several weeks or months at a time with each parent. The pro argument goes that this is beneficial for the child because the child gets to spend equal time with each parent, thereby receiving more balanced nurturing. However, the con argument is that this is ultimately detrimental and disruptive to the child’s well-being, as the child never has the opportunity to settle into a single home with either parent, but is constantly shuttled back and forth, thereby having no sense of stability in his or her young life. Thus the court must decide in favor of what is in the best interest of the child.

Generally, the court will seek to keep siblings together and assign sole custody to one “custodial” parent, with visitation rights extended to the other, “noncustodial” parent, or the modern version of “a parently plan.” These rights may include the child spending several hours, weekends or some vacation time with the noncustodial parent. If there is any concern over the child’s safety with the noncustodial parent, supervised visitation may be ordered.

Massachusetts child custody laws allow shared physical custody, or co-parenting if the co-parents can arrive at a mutual agreement outside of court to continue to raise their child together with some type of joint physical custody arrangement. This arrangement must be submitted in detail to the court for review, at which point the court may approve the co-parenting plan as submitted, or modify the plan prior to approval. The details included in the co-parenting plan cover issues such as how custodial time will be split between the co-parents and how expenses will be split. If the co-parents are not able to reach an agreement on a custody the Massachusetts child custody laws and courts will determine issues of custody, visitation, and support in accordance with the best interests of the child.

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