Now that we are divorced, stay away from my Facebook Friends!

Husbands and wives share many aspects of their lives. It is not unusual for them to share their Facebook friends and other social media contacts. The practice of looking at someone's friends or contacts and trying to convert them into your friends or contacts has earned its own nomenclature. The UrbanDictionary calls this practice “Facejacking” (limited to Facebook), “Spacejacking” (limited to MySpace), “fooching”, "mooching," "friend poaching," "friend reaping," or  "friend swiping".

Facejacking does not create problems when the couple is together. Frequently, one spouse encourages the other to do so. However, once the couple split up and get divorced, attitudes change. While the couple may 

remain Facebook friends, it is not acceptable for a former spouse to Facejack the new friends and contacts and reach out to them. The last thing that an ex-husband wants is for his ex-wife to contact his new girlfriend through Facebook. This is especially bad when the girlfriend doesn't expect such a contact. The way to prevent this problem is to anticipate this when drafting the divorce agreement.

A typical divorce agreement has a clause that requires each spouse to respect the privacy of the other. I recommend additional language be added that prohibits Facejacking and the like. An experienced divorce lawyer should be able to draft language that protects both spouses equally from the ex-spouse using Facebook to try to sabotage your new relationship.

What will the Court do in a divorce when I prove that my spouse cheated?

Discovering that your spouse has been unfaithful can be an emotional disaster. To many people, this is a wrong that can never be corrected. It can destroy a marriage. People expect that infidelity will be punished by a Judge in a divorce and the innocent spouse will be rewarded by a favorable property division or alimony as a result. Some people think that a person who commits adultry should not have custody of children. While the actions of the courts vary depending on the specific facts of a case, usually, a Massachusetts Court will do very little when adultery is proved.

Grounds for Divorce

Massachusetts is a no-fault divorce state. There is no advantage to filing a fault grounds divorce if the other party will appear in the divorce action. While Massachusetts allows a divorce on the grounds of adultery, Judges will encourage parties to change the divorce to no-fault. If a divorce is filed on the grounds of adultery, a motion must be filed to name the third party who participated in the infidelity. Judges will deny this motion as soon as it is filed.

Alimony and Property Division

Alimony and property division in a divorce require a Judge to consider many factors. There is no factor specifically addressing marital fidelity. One of the factors is "conduct of the parties during the marriage." Certainly cheating should be considered wrongful conduct. However, it is hard to imagine a marriage where the only conduct by one party was bad conduct. Usually every person has good conduct and bad conduct during a relationship. The Judge must consider all conduct, good and bad. As a result, it is rare that a person has behaved so badly during a marriage that it has a significant affect on the outcome. Massachusetts divides marital property under a concept of equitable division. I have never heard a Judge describe any part of equitable division as including the concept of punishing a party for bad behavior.

Sometimes when Infidelity occurs one spouse has established an on-going relationship with a third party. Sexual infidelty may be a part of this relationship. Another part of the relationship may be using marital resources to benefit the third party. Expensive gifts or trips can constitute a diversion of marital assets. If spending of substantial money to conduct the affair or benefit the paramout occurred, then a Judge may be expected to take the expenditure into account when dividing assets. It is not the sexual acts that impact the property division, it is the spending of money.

Child Custody and Child Support

The standard for deciding custody is “the best interests of the child.” If the affair was unknown by the child and had no effect on the child, then the Judge should not consider the affair when deciding child custody or visitation. Although it is predictable that the paramour may be exposed to the child in the future, unless there is evidence of inappropriate sexual conduct occurring in the presence of the child, the Judge should not let an affair control a custody decision.

Child support is decided by application of the child support guidelines. Once child custody is determined, child support will follow. An affair is not related to the child support guidelines.


An affair may violate societal and religious morals. However, in most cases, it has almost no effect on an divorce. Of course, each case is fact specific and if your spouse has committed adultery you should consult an experienced family law attorney to discuss what effect, if any, this can have on a divorce.

How to prepare for a divorce.

Some people make the decision to divorce in an instant. Others find the decision to divorce is a long process that percolates over time. If you are a person who is thinking about divorce and moving towards ending your marriage, then the following actions can help you prepare for divorce and to make the decision about your future:

1. Consult a family law attorney.
   A lawyer can discuss the specifics of your case with you and give you advice on preparing for a divorce. The lawyer can also help you understand divorce process, cost, and how a divorce will affect your family. The sooner you consult a lawyer, the better prepared you will be.
2. Gather financial information.
   Financial information is the center of a divorce. From the first time you go to court until the last, financial information is critical to your case. Financial statements must be filled out almost every time you go to court. These forms are signed under the pains and penalties of perjury and must be accurate. When you have documents that accurately explain your financial status, you will save attorney fees and have more accurate financial statements. As you approach a divorce, make copies of financial documents and put them in a safe place where your spouse won't find them. If you have assets that are not documented like paintings, coin collections, or other collections, you should make a list of these items and photograph them.
   
3. Start tracking your budget.
   A financial statement discloses your income, expenses, assets, and liabilities. Many people have difficulty calculating their expenses. If you start recording your expenditures it will help you complete a financial statement. If you don't get divorced, you may find that tracking your expenses will help you take command of your budget. If financial problems are damaging your marriage, recording your expenses may help you discuss your issues with your spouse.
   
4. Don’t hide assets.
   Courts expect people to be honest. If you get caught hiding assets, you can expect that the Judge will punish you. If you are caught hiding assets, a Judge may charge you with more assets than you actually took. Judges have great discretion in resolution of divorces and you don't want the Judge to think that you are trying to perpetrate a fraud on the court. You always want the Judge to think that you are honest and acting in good faith.
   
5. Don't speak ill of your spouse.
   If you haven't decided to end your marriage, trash-talking about your spouse is not going to help your relationship. If you have decided to end your marriage, nothing good will come from saying bad things about your spouse. If you have children you don't want your children to hear you speaking poorly about your spouse. The same is true for friends and relatives. Any statements you say about your spouse can be brought into court and influence the Judge. If you have a custody battle, these statements may be the basis for awarding custody to your spouse. Remember that bad statements are not limited to verbal statements. Make sure you behave on social media like Facebook. Any postings on the internet may be introduced in court. Don't post anything that you don't want a Judge to see.
   
6. Don't destroy evidence.
   If you destroy documents or other evidence, a Judge may treat this as if you are hiding assets. Just as a Court looks to good faith in disclosing financial information, the Court will also look to good faith in preserving evidence. Since social media (Facebook) may be introduced as evidence, you should not destroy postings on social media.
   
7. Get help from a therapist.
   The decision to divorce can be one of the most difficult and stressful decisions in a person's life. Consult a therapist to deal with the stress and possibly the decision about terminating your marriage.  Massachusetts health insurance policies have mental health benefits.  Consult your health insurance company to understand your coverage and to choose an appropriate therapist who is covered by insurance.
   
   
   
   

Every child of a divorce should have virtual visitation.

One of the unfortunate consequences of divorce is that children no longer live in a household with both parents. This means that the child's time must be divided between the two parents. Very few parents are satisified with vistitation plans but acknowledge that it is necessary. Typically, the non-custodial parent feels that they deserve more time with the child.

Virtual visitation occurs when a parent or grandparent uses computers to see and talk to the child. Using programs like Skype or Facetime a parent can see the child while talking. Furthermore, this occurs in real time. As a result, parents can do a lot more than just chat with a child. I had one client who played duets over the internet with the child using one instrument and the parent another. Parents can teach yoga, karate, and dance using virtual visitation. Children can show parents art projects from school. There is no limit to creative use of the internet when using these programs.

When I draft separation agreements, I usually include language that allows virtual visitation. Even if the parties don't have computers, I include the language as they could get computers or smart phones in the future.

If you don't have virtual visitation and would like to use it, consult an experienced family law attorney to discuss adding virtual visitation to your custody arrangement.

Does Massachusetts have a new standard for modification of child support?

A recent case in Massachusetts, Morales v. Morales, decided March 12, 2013 SJC # 11104 is described as changing the standard for modification of child support. While this is clearly an important case, in my opinion, it does not change the law.

The traditional law of modification for child support is that a modification can be granted when there exists a material and substantial change of circumstances from the prior court order. There have been many court decisions interpreting this standard. In 1998, Massachusetts changed G.L. c. 208, § 28

which provides that a child support order shall be modified "if there is an inconsistency between the amount of the existing order and the amount that would result from application of the child support guidelines." In the Morales case, the Court describes G.L. c. 208, § 28 as establishing a different standard for a modification, the inconsistency standard. I have always interpreted this law as stating that an inconsistency from the existing guidelines constituted a material change of circumstances. The result is the same, child support can and should be modified any time there is a variance from the order and the guidelines.

In the Morales case, the Court also addressed another aspect of the child support guidelines: overtime. In this case, the trial judge announced that she does not include overtime in the child support calculations. The child support guidelines give the judge ability to disregard overtime after considering numerous factors. However, this trial Judge never considered overtime. On appeal, the court found that the Judge cannot approach the child support guidelines with an inflexible rule on consideration of overtime. The Judge must approach as a neutral and give due consideration to the factors as stated in the child support guidelines.

My interpretation of this case is as follows:

1. The child support guidelines are not guidelines. They are a set of rules that must be followed.
2. Any time that there is a variance from current calculations under the child support guidelines, there should be a modification. Hopefully, parents will exchange financial information on a regular basis and make the adjustments without resorting to litigation.
3. People who pay child support (payors) should not make deals to pay different sums than dictated by the child support guidelines. As an example, assume the parties agree to pay reduced child support in exchange for a lump sum payment. This could be approved at the time of a divorce. However, what happens one year later when the recipient of the support seeks an increase to comply with the current child support guidelines? It appears that the payor could end up paying the current child support guidelines even though they made a deal to pay less. The lesson is that it is very risky to stray from the guidelines.
4. It is reversable error for a Judge to state that they always approach the child support guidelines in a particular way. Judges may say this to encourage settlement. It appears that Judges should avoid making statements of this nature. In all probability, Judges will continue to have inflexible approaches to the application of the guidelines. However, they will probably stop talking about their approaches and just make rulings after hearing the evidence.

Despite this opinion which clarifies the interpretation of the child support guidelines, people will continue to litigate child support. Some people will try to hide their income. Some people will not disclose their income in advance of litigagtion. Some people will refuse to consider sources of income other than from their primary work. In all of these cases, litigation is likely to occur. It would be best if people consulted family law attorneys before making mistakes of this nature.

Who gets the engagement ring when the wedding is called off?

In Massachusetts, an engagement ring is usually considered a conditional gift: given on the condition that the couple gets married. The normal expectation is that if the engagement is broken and the wedding doesn't occur, then the ring will be returned. However, it doesn't always work out this way. In the event a dispute about an engagement ring makes its way to court, the court will look at the circumstances surrounding the giving of the ring and the circumstances surrounding the breakup of the couple.

Some people give the ring on an important day in the calendar. An engagement ring given on a birthday or on Christmas can be a combination of a unconditional gift and a conditional gift. If a court determines that the ring was a birthday gift, then it is not conditional and should not be returned. This concept should encourage giving the ring on a day that is only special because the engagement occurs on that day.

The way in which the couple breaks up can decide who gets the ring. If it is a mutual decision to not get married, then the ring should be returned as the wedding did not occur. However, if one of the parties misbehaves and this causes the break up, then it is a different result. The party who is at fault for the end of the relationship can't get the ring. If there is fault such as an affair, physical abuse, or other wrongful conduct, then the ring will go to the party without fault. If neither party is at fault, then the ring is returned to the donor.

The result is different after the marriage if a divorce occurs. Once the marriage occurs, the condition of the conditional gift has been met and the recipient of the ring gets to keep the ring. Unlike an engagement, fault in the termination of the marriage does not effect ownership of the engagement ring. Once the condition of the marriage is met, the gift is complete. This doesn't mean that the ring can never be returned. In a divorce in Massachusetts, a divorce judge has great discretion in property division. The judge's power extends to almost all property including the engagement ring. This means that a judge can change ownership of the ring to fairly and equitably divide all property owned by the couple. As a general rule, a judge won't look to change ownership of a ring unless the ring has significant value. In most divorces, the judge will let the recipient keep the ring.

If you are getting divorced an experienced divorce lawyer can advise you on property division including the manner to treat the engagement ring.

Why the Degeneres brief deserves our attention.

Ellen Degeneres, the TV personality, claims that she filed a brief in the Supreme Court in the potentially landmark case involving California's Proposition 8 and gay rights. http://www.facebook.com/#!/ellentv?fref=ts. This action deserves the attention of the nation. That Ellen supports gay rights should not be a suprise. However, to my knowledge, this is the first time that a “brief” has been filed in the manner chosen by Ellen. She filed the brief on Facebook. Nobody has done this before.

Of course, the brief filed by Ellen is not a brief at all. It is a letter to the Supreme Court published on the internet. The Supreme Court has rules on how to file briefs. Ellen failed to comply with any of these rules. According to the rules of the Supreme Court, the parties to the litigation can file briefs. Other parties, can file briefs on a case but only with permission of the Supreme Court. Ellen had no such permission. She is merely an ordinary citizen who published her position on the issue on the internet. However, while she is only a citizen, she is also a famous personality.

Traditional theory teaches that Judges don't consider outside influences when deciding cases. It is clear that the Supreme Court conducts their own social and factual research. This was demonstrated recently when Justice Roberts mentioned facts about voting rights that were not known by the litigants. http://news.yahoo.com/massachusetts-more-racist-mississippi-chief-justice-roberts-hints-193401190.html. The reason that this action by Ellen is worth watching is to see if the Supreme Court pays attention to her letter.

As society changes, I hope that government changes with society. Clearly, the technological changes in the internet and social media can change the way the courts function. Should the Supreme Court or any other Court allow individuals the right to right “briefs” on pending cases by publishing them on the internet? This case and Ellen's “brief” may change the way the courts function.

On the subject of gay rights, Ellen's brief isn't really a brief at all. It is a short letter that states that her gay marriage doesn't hurt anybody. She is denied rights for no reason except she is different. She urges the Judges to rule that gay marriage should be treated the same as any other marriage. Based on substance, this is a very poor brief. However, the unique publication method could make this brief one of the most important briefs filed in the Supreme Court.