Sunday, January 29, 2012

Can grandparents get visitation rights?

In Massachusetts, there is a law that on it's face creates the rights for grandparents to visit their children under a court order if the parents are divorced, one parent has died, or paternity is established by a court. This law, G.L. c. 119, § 39D, was interpreted by the Supreme Judicial Court in the case of Blixt v. Blixt, 437 Mass. 649 (2002). In this case, the Court recognized that parents have the constitutional right to raise their children without undo interference from the state. Applying this to grandparent rights, the court found that the statute can only be used to protect a significant prior existing relationship between the grandparent and the child and that intervention by the state is necessary to prevent harm to the children. Applying this to possible facts, basically, the grandparent must have had almost daily interaction with the child. It is best to consult an attorney before seeking grandparent visitation.

Saturday, January 21, 2012

Financial Statements and Accuracy

Every person who appears in a divorce or support proceeding that involves money or finances must fill out a financial statement. If your income is under $75,000.00 per year you should fill out the short form. If your income is $75,000.00 or greater, you should fill out the long form. Financial Statement Forms including schedules for self employment and rental income and instructions for filling out the forms may be found at http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/forms.html#financial.

I describe financial statements as the heart and soul of divorces. This is the most important document filed in the proceeding. This document will determine child support, division of property, and alimony. Everything else, all exhibits and testimony are to convince the judge that the financial statement is accurate or inaccurate. If the statement is accurate, it means that the person was truthful and acting in good faith. If the statement is inaccurate, it could mean that the person made a mistake or it could mean the person committed perjury. Perjury is a crime and could result in a criminal case and potentially jail time. A judge should consider the accuracy of the financial statement when making an award of attorney fees. A judge can choose to ignore a false financial statement and award child support, property division, and alimony on the needs of the other party. This can result in onerous judgments. If a person fails to present an honest and accurate financial statement, they permit the judge to make any order the judge wants.

Monday, January 16, 2012

Massachusetts alimony reform law – alimony formula

I have heard many people talk about the new alimony reform law as containing a “formula” for alimony. In my opinion, this is not quite true. The new law contains a formula for the maximum amount of alimony a person can receive. The formula also has conditions that must be met before alimony can be awarded. This formula starts by calculating the length of time that is counted for the marriage. It then limits the income that can be considered for payment of alimony. Finally, it sets forth a math formula for calculating the maximum amount of alimony to be awarded. The law sets forth many factors and gives judges great discretion to grant or deny alimony.

The length of time counted as the marriage to determine alimony can include time before marriage if the couple cohabitation and combined their finances. A couple that lived together for ten years, got married and then separated after five years could have a fifteen year marriage for alimony purposes.

Income that can be considered for alimony does not include income that is used to calculate child support. Since the child support guidelines consider combined income up to $250,000.00, alimony won't be awarded in addition to child support unless the combined income exceeds $250,000.00. In addition, passive income from assets that are divided between the parties may also be excluded.

Once a Judge determines the length of the marriage and the income available for alimony calculations, the Judge must then consider the numerous factors listed in the statute. If the court finds that alimony is to be awarded, the law limits the amount of alimony to 30% to 35% of the difference between the two incomes.

This math formula causes many people to describe the new law as containing a formula for alimony. In my opinion, this ignores the requirement in the law for the court to consider many factors before granting alimony. In addition, there is another limit on the amount of alimony to be awarded. Alimony can only be granted if the recipient needs the money to maintain the standard of living of the marriage. This standard of living also acts as an upper limit on the amount of alimony granted.

Alimony is a complicated topic.  An experienced divorce lawyer can help you understand how the alimony law applies to your particular situation.


Friday, January 6, 2012

Parental alienation can cause a change in custody.

Some people are not satisfied to get divorced. They want to inflict pain on their ex-spouse. When the couple have children, the children afford an easy method of hurting the other parent. Some parents use the children as weapons for the sole purpose of causing emotional pain to the other parent. They interfere with visitation and attempt to alienate the children from the other parent. Not only is this harmful to the other parent, it is also harmful to the children. In a recent case of Barrington v. Barrington, the Court changed custody from mother to father due to parental alienation.
The focus should be on the best interests of the children. Parents should try to get along for the benefit of the children. Divorce lawyers should guide their clients to avoid this type of harmful behavior.

Monday, January 2, 2012

Communication with your ex-spouse. Use Email.

If a couple have children, their relationship doesn't end when they get divorced. They will continue to interact for the rest of their combined lives. The worst way to communicate is in front of the children. Parents who communicate in person tend to do so when they exchange the children for visitation. The children are exposed to every argument and every angry word. Children pick up on these and are likely to have adverse reactions. Even if the children don't show a reaction, they are likely to suffer emotionally.   If the parents communicate by telephone, children are likely to hear one side of the conversations. It is better to keep the communications entirely private from the children. E-mail does this.

Email offers many advantages to other forms of communication. E-mail is private. It allows a greater ability to think before responding. A person who is prone to spontaneous statements can reflect before writing a response. Email can be printed and produced in court. This provides a protection against a party who is unreasonable when negotiating but denies it in court. The ability to produce Emails in court also provides a protection against swearing and threats. With E-mails, the parties can discuss the children without exposing the children to the conversations and still make the necessary arrangements.

If the parties improve their communications, they are likely to avoid problems that will cause them to return to court.