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Showing posts from August, 2010

Unmarried parents can collect child support

Is mediation to settle a divorce right for you?

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Mediation as a way to settle divorce cases is growing in popularity. If it works, it will save the parties money and will be quicker than a divorce trial. However, mediation is not for every couple. Mediation is a process that encourages compromises. If both parties are not willing to compromise to settle the issues, then mediation is not appropriate. Both parties must be willing to share financial information and look for a fair and reasonable settlement. Custody disputes are not well suited to mediation. Mediation looks to compromise by both parties meeting halfway. If both parties want primary custody, meeting halfway results in a custody situation where the child spends equal time with each parent. This may not be in the child’s best interest.

When does a child get to choose which parent they will live with?

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A common misconception in Massachusetts is that children can decide custody at age 14. This leads parents to try to influence or bribe the child to gain an advantage in a divorce. Legally, a child can decide which parent will get custody at age 18 when the child is an adult. Before that, as a general rule, children don't decide custody. If the child is of "suitable age" the Judge will probably have the child interviewed to determine the child's wishes. However, this is not the determining factor. A judge should decide custody based on the best interests of the child and not the child's wishes. Attempting to influence the child can backfire as a judge may decide that such attempts are harmful to the child.

What is a successful divorce?

Parents should exchange financial information on a regular schedule

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In Massachusetts, a modification action to increase child support can be filed upon a material change of circumstances or every three years.  A person receiving child support needs to know about the other parent's income or they are likely to file a modification just to find out what they currently earn.  While this can be good for lawyers, it is expensive for the parties and harms the working relationship between the parents.  A better alternative is for the parties to exchange financial information on a regular basis and calculate the child support guidelines.  This gives the parties the option of making an agreement on the new amount of child support and avoiding fighting in court.  If they resolve the issue between them, they can file the agreement with the court and make it a court judgment.   While I recommend that parents exchange information every year, at a minimum, they should exchange information  at least every three years.

Massachusetts now allows postnuptial agreements.

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In the recent case of Ansin v. Craven-Ansin, Massachusetts established that spouses can contract with each other in limited circumstances.  Known as marital agreements, postnuptial agreements, or postnups, these agreements can be used in an effort to save a marriage or for estate planning.  Such agreements will be valid and enforceable provided they meet the highest standards of fairness and good faith.  This means that there must be full disclosure of finances and assets and the agreement must be free of fraud, and coercion.  Each party must have the opportunity to consult an attorney before execution.  In addition, the agreement will be compared to property division under the divorce laws to determine fairness.  

Bring proposed solutions to court

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Courts deal with problems.  Every case is brought because the parties have a problem that can't be solved without the assistance of a Judge.  The parties should think about ways to solve the problems and propose these solutions to the Court.  While most criminal cases involve punishment, most civil cases look to ways to solve problems and not punish.  If you are suing for money, know how much money you want.  If you are suing for custody or visitation, be prepared to explain where a child will sleep, eat, and go  to school.  Be prepared with a visitation plan for the other parent.  Judges are more likely to give you what you want if you are able to tell the judge what you desire.

An experienced family law attorney can help you prepare solutions to present to a judge.

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