Don't give in to peer pressure bullying negotiations

Don't give in to peer pressure bullying negotiations.¹

From the time that I started practicing law others have told me do act in a particular way or do things differently using the argument “that's how everybody else does it.” In most instances this advice was accompanied by an explanation based on law, facts, or logic. In many instances I accepted this advice and changed my behavior. If a logical argument exists to do things in a better way then I support the better way. In many instances the advice could be summed up as the difference between how things are taught in school and how they are done in the real world.

In a number of instances other lawyers have presented arguments to do something differently but without any basis in law, fact, or logic. I have always experienced these arguments in the course of trying to negotiate an agreement to resolve litigation. I have never accepted these arguments in the absence of logic. The argument of doing something because everybody else does it is usually a compelling argument. Nobody wants to be different because doing something differently creates a sense of inferiority. However, arguing that a lawyer should do something or include a particular concept in a settlement agreement because “everybody else does it” without logic should be viewed as an act of malpractice. If a lawyer is reluctant to change their position then the last reason they should do so is because all other lawyers do so.

I recently settled a divorce case and the negotiations almost failed because the opposing lawyer wanted to include an anti-bankruptcy clause. When I rejected this the other attorney argued that I should include it because everybody else includes it. I sent the other attorney legal research which indicated that this paragraph would violate bankruptcy law to which the other attorney responded “all other attorneys include it.” She never provided any law or logic to explain why this clause did not violate bankruptcy law. Instead, she repeatedly told me that everybody else does it. She even told me that the Judge will instruct me to include it if we ask the judge. In other words, because she had no basis in law to support her position she resorted to bullying.

This sort of bullying should have no place in legal negotiations. Lawyers should always negotiate in good faith complying with the law as it applies to the facts and the litigation and the ethics that govern lawyers. Arguing that everybody else does it has no place in good faith negotiations.

1  I thank my wife, Sheila g Pransky, M.S.W., L.I.C.S.W. who explained the offensive behavior as “peer pressure bullying.”

Health Insurance, Emancipation, and Separation Agreements

In Massachusetts divorces health insurance is a priority concern for judges. It is standard practice to

provide health insurance for children until they are emancipated. In addition, unless there is a remarriage, health insurance is usually provided for an ex-spouse until all children are emancipated. The ex-spouse is may also be included in coverage because in Massachusetts most family health insurance policies cover an ex-spouse at no additional cost. As long as there is a dependant child, a family health insurance policy is needed. It is now time to reconsider the standard approach to health insurance in separation agreements.

Under prior law, once a child graduated from college or was otherwise emancipated, they had to get their own insurance policy. The law did not allow them to be covered under their parents' policies. Obamacare has changed this. We can now cover children under a parent's policy until age 26. If a parent is going to provide insurance for a child after emancipation they should also cover the ex-spouse as well. While a parent may voluntarily cover a child they may find that employers won't cover an ex-spouse unless there is a court order that requires such coverage. Divorce attorneys should anticipate the ability to cover the ex-spouse for an extended period due to Obamacare and draft language to address this.

Not every child will need health insurance coverage from a parent after emancipation. Many children will find employment and obtain health insurance from their employer. If this happens, there won't be a family health insurance policy available to cover the ex-spouse. Whatever language is used in a separation agreement needs to consider this potential.

There is also the issue of the cost of providing post-emancipation health insurance for a child. A family plan will always cost more than an individual plan. Child support in Massachusetts presumes that both parents will contribute to the cost of raising a child. It would be reasonable for the parents to share the cost of post-emancipation health insurance for a child. While a judge can't order health insurance for a child after emancipation, the parties can contract for such insurance. Splitting the cost of the health insurance would constitute consideration to support the contract. In the event the parties later litigate over the enforceability of such a contract, splitting the cost may make the difference between enforceable and non-enforceable.

A good separation agreement should anticipate as many possible changes as possible. Planning for a child and ex-spouse to continue to have health insurance after the child's emancipation should be part of every separation agreement. An experienced divorce attorney should draft language to provide health insurance for this additional period.

Divorce and Children's Religion in Massachusetts

When parents with different religions divorce the choice of religious upbringing of the children can be a major issue. A recent case from the Massachusetts Appeals Court makes agreement on this issue much more difficult.

In the case of Lapat v. Lapat (decided on April 20, 2013), a Jewish husband and a Christian wife settled their divorce by a comprehensive separation agreement. They specifically addressed the religion of the children. They agreed that the children would be raised primarily in the Jewish tradition and prohibited the mother from enrolling the children in any form of Christian education, organizations, or religious instruction. The mother then claimed that this provision violated her constitutional right of Freedom of Religion. The father sought to prohibit the mother from exposing the children to her Christian religious practices and beliefs. Instead of focusing on the language in the agreement that says that the children would be raised primarily in one religion, the Court ruled that the entire clause was unenforceable absent a showing that exposing the children to the mother's religion would cause the children to suffer substantial injury.

The use of the word primarily means that the children should be exposed to both religions. The father having agreed to expose the children to both religions should not be able to limit the exposure after the divorce was final. Instead the Court imposed a standard that seems to prevent the parents from agreeing at the time of a divorce on religious choice for their children. In the decision, the Court rewrote the religious provision of the divorce agreement to require the parents to agree on religious education, events, and practices for each and every choice. This seems to be the worst possible option for the family. Instead of having preset rules that the parties established by agreement, the parties will the opportunity to argue and litigate over every religious choice. While the Court should not give preference to one religion over the other, the Court can enforce a provision where the parents agreed on religious preference. Reducing issues for parents to litigate can only benefit the children in the long run.

It is possible that Courts in the future may treat this case as limited to the unique facts of this case. Until such time as the Courts give further guidance on this issue, I suggest the following:

1. When agreeing on religion, parents should agree to specific provisions. They should specify the religion for the children.  Significant life events as viewed by the religion of choice should be addressed. Children's participation with parents in religious holidays should be detailed. This should include details for both parents' religions and not just the children's religion. The agreement should describe how the parent with the different religion from the children can practice their reiligion in their home when the children are present.
2. The agreement should recite how significant religion is to the welfare and well being of the children. It should also state if the parents agree that training and education in another religion is harmful to the children. If the parents, before divorce, raised the children in only one religion or primarily in one religion then the agreement should recite the history of the children's religion.
3. Finally, the agreement should acknowledge that the parties have the right to change their religious beliefs and to change the religious provisions of the separation agreement. However, neither parent has the right to fail to comply with the terms of the agreement without the agreement of the other parent or a modification of the agreement. The separation agreement should also set forth a procedure to modify the religious provisions of the agreement. This modification may be by court order, mediation, arbitration or a parent coordinator. Absent such a modification each parent shall comply with the terms of the agreement. This should recognize freedom of religion but also recognize the need for stability in parenting and the need for joint action rather than the right of one to implement unilateral change.

Parties should draft choice of religion provisions in separation agreements with care. An experienced Massachusetts divorce lawyer should be able to draft provisions with specificity and clarity that may survive appeals.