What to wear and how to behave in Family Court

What people wear to court and how they behave in the courthouse can make a difference in how the court treats them.   Whether you are in court with a lawyer or as a pro-se litigant, how the court views your appearance and behaviour can affect your case.  This is true for all types of actions from contested divorce to a non-contested adoption.  You always want to make a good impression on the Judge.

Dress respectfully.

The Judge holds your fate in the palm of the Judge's hand. You should act as if you want to please the judge at every opportunity. I frequently describe the way to dress as the way people dress when going to church. It is a formal setting. No shorts, halter tops, or stained or torn clothing. Clothing that is very fashionable may be too revealing for a court setting. Clothes that are too sexy may offend a Judge.

Dress the part.

Don't cry poverty and wear an expensive watch or carry an expensive purse. If you are appearing in court requesting money from your spouse, you don't want to appear as a person who lives beyond their means. Wearing the latest fashions may help your spouse when they claim you are hiding money.

Act respectfully

A court room is a place where people come to argue. They argue with their spouse and with the Judge. However, argument can be respectful and still be effective. Don't interrupt people. Let every one finish what they are saying. Don't raise your voice. If you  your voice, you are likely to hurt your case because the Judge may limit your argument just to prevent you from getting more excited. Don't swear or call your opponent names. It is not uncommon for a judge to stop a person in the middle of an argument to admonish them to respect the other party.

You should address the judge as "Your Honor" or by  their name as in Judge [last name].  In some courts it is acceptable to refer to the Judge as "Judge" but in some courts this is considered disrespectful.  Some courts may also consider it to use the term "sir" or "Ma'am."  In other courts these terms are commonly used.  You should observe prior cases or ask a court officer to learn the customs of that court. 

Avoid Offensive behavior.

Offensive behavior is not limited to words. It includes all behavior in the courthouse. If a problem occurs in the courthouse, a court officer will learn about it and report the incident to the Judge. Remember that a court officer has the power to arrest people who don't behave. A Judge has the power to declare a person in contempt of court for actions done in the building.

While a court is a public building, you should avoid bringing a boy friend or girl friend to court. The presence of this person is likely to be offensive to your spouse and to the Judge.

Avoid drawing attention to yourself in the courthouse. Shut off your cell phone. Don't chew gum, eat food, or read a newspaper while waiting for your case to be called. While the Judge is in the courtroom, you should never talk unless the Judge gives you permission to speak. You don't want the Judge to ask what was so important that you had to speak and disrupt the court's business.

If you have questions about how to prepare and dress for court you should consult an experienced divorce lawyer for advice.

Working with a co-parent.

In the Massachusetts Family and Probate Courts, the focus in divorce and related cases, is always on the best interests of the children.  Children are viewed as incompetents who need protection from the State.  In these cases, the State is represented by the Judge.  Parties who come before the courts need to work to improve the lives of the children.  An article by Donna Ferber, a therapist in Connecticut, discusses a common problem:  dealing with an uncooperative co-parent.  She discusses the problem and makes excellent suggestions on how to interact with the other parent for the best interests of the child.  This article is worth reading. 

As a divorce attorney, I measure the success of cases involving children by the actions of the children when they become adults.  If a child is able to lead an independent, productive life with employment and healthy relationships, then the case was a success.  In contrast, if the child has addictions, is unable to work, sabotages relationships, or can't live an independent life, then the case was a failure.  The article by Ms. Ferber will help parents be successful in co-parenting.

Massachusetts Alimony Law

On March 1, 2012, alimony reform become law in Massachusetts. The new law completely changed alimony from the one size fits all that was the law to a more flexible approach with formulas and four categories of alimony. While it will take the courts decades to interpret the new law, there are some known consequences.

Under the new law, fewer people will be receiving alimony. No alimony will be awarded if child support is ordered and the combined income of the parties is less than $250,000.00. This is a major change from previous law when alimony and child support were awarded together. Under the new law, most alimony awards will terminate by age 67. The old law did not have a termination date unless the parties agreed to a specific termination. Since the new law allows some people who are paying alimony under the old law to seek to terminate alimony based on the new law, it is expected that many payors of alimony will seek to terminate their payments.

The new alimony law imposes termination dates on most alimony awards. The law permits lifetime alimony for marriages that lasted more than 20 years. All other marriages have a formula for the length of alimony awards.

The new law has language about the amount of alimony to be awarded which is 30 to 35 % of the payor's income. While I think that this language imposes a maximum level of alimony, lawyers are discussing this as a presumptive amount. No matter which interpretation is used, it will serve to decrease litigation over alimony.

In my opinion, this law changes the law from biased in favor of women to a bias in favor of men. It is an improvement over the old law. However, just as the old law allowed men to overpay alimony, this law is likely to cause women to be under paid. I think that the new law will cause more women to live in poverty as they age out of the work force while their ex-husbands live in comfort. It is important that Massachusetts lawyers look to the potential of poverty as they represent their clients in divorces and they apply the new law.

Does Gay Marriage hurt society?

During the last two weeks, the issue of gay marriage has received a lot a attention in the press. This is a result of the Ninth Circuit ruling that California's Proposition 8 was unconstitutional and the Governor of New Jersey vetoing a bill to legalize gay marriage in New Jersey.

I practice law in Massachusetts and this state was the first in the nation to legalize gay marriage in 2004. While I don't have the benefit of statistics, I believe that I can evaluate the impact of this decision.

The press no longer carries stories about gay marriage in the state. People appear to have accepted gay marriage and no longer discuss the subject. There were never any stories of any harm to anyone in the state. There were no reports of heterosexual marriages destroyed as a result. Basically, all of the fears of harm from gay marriage failed to occur. There appears to have been no negative impact.

Nevertheless, there are some people who were affected by this change in the law.  The numerous gay men and women who were able to legally wed and have the same rights and benefits as others  were affected.  They now can inherit from their spouses. They can obtain employment benefits for their spouses. They are treated the same under state tax laws as other married couples. They have the opportunity to be happier as a result of the equality they can experience in this state.

While the rest of the country struggles with the issue, they should look at the impact of gay marriage in Massachusetts. It appears to me that gay marriage has benefited society and had no negative impact at all.

When can a residential landlord charge for utilities?

Many landlords charge tenants for utilities or have them pay the utility companies directly. The penalties for improperly charging utilities to a tenant can be severe. A residential landlord can charge for utilities under certain conditions as follows:

1. Heat and electricity (electricity, gas, and oil). A landlord can charge these to the tenant or have the tenant pay them directly if there is a written letting agreement (commonly called a lease) in which the parties agree that the tenant will pay any or all of these charges. In addition, the utilities must be separately metered to the tenant.
2. Water and sewer. A landlord can charge these to the tenant but must take more steps. Like heat and electricity, there must be a written letting agreement. In addition, the landlord must install water conserving fixtures, must have a licensed plumber certify as to the installation of these fixtures and have the certification filed and accepted by the town or city Board of Health. In addition, the water and sewer must be separately metered so that the tenant is charged only for the water used. If the landlord fails to comply with all of these requirements, then the landlord must pay these charges.
3. Telephone, cable tv, and internet. These utilities are not necessary for a habitable home and the landlord has no obligation to provide these. If the tenant wants these utilities, then the tenant must pay for them.
   

Landlords should consult a lawyer to make sure that they are not violating the law.

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.

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.

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.

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.

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.

After divorce don't allow children to become master manipulators

As a general rule, parents, after divorce, don't communicate well with each other. If they could communicate well, they probably wouldn't have gotten divorced. This lack of communication creates a vacuum. Just as nature abhors a vacuum, so do children. Unless the parents act to avoid problems, children will fill the vacuum with manipulations.

A typical manipulation could occur around bed time. While the couple was together, the child's bed time was 8:30 P.M. One night, at Dad's house the child may ask “Why do I have to go to bed at 8:30 when Mom lets me stay up until 9?” Of course, Mom doesn't but Dad doesn't know that. Dad feels that he has to compete with Mom for the child's affections and says that the child can now go to bed at 9:00. The child then tries the same thing with Mom with similar success.

Of course, the answer is parents should communicate with each other and avoid competing for affections. A simple response to a child could be “I'll check with your mother and decide after we talk.” The child, knowing that the lie is about to exposed may simply fall back on “Never mind.” Of course, the best way to handle this is for parents to agree to check with each other on all such matters.

Another way of handling this is to explain to the child that there are two households with two sets of rules. So when the child explains that in Mom's house the child has a TV in the bedroom and can watch it until the child falls asleep, a good response is that there are two sets of rules. In Dad's house, there won't be a TV in the bedroom.

Security Deposit Law—Landlords Beware!

     Recently, Judge Young of the U.S. District Court for the District of Massachusetts, wrote an opinion interpreting the Massachusetts Security Deposit law, G.L. c. 186, § 15B. In the case of Hermida v. Archstone, (Civil Action No. 10-12083-WGY) the court addressed an issue under the portion of the law that states that a landlord cannot require a tenant to pay any money at the inception of a tenancy except (i) rent for the first full month of occupancy; (ii) rent for the last full month of occupancy calculated at the same rate as the first month; (iii) a security deposit equal to the first month's rent; and (iv) the purchase and installation cost for a key and lock. The landlord in this case collected an “amenity use fee.” An amenity use fee was for use of a pool, gym, and outdoor grill. The landlord claimed the fee was optional and the tenant claimed that they were never told that the fee was not required. The court found that the landlord violated the statute by imposing this fee.

     The court found that the amenity use fee did not fit within any of the categories of fees allowed by this statute. As such, the landlord violated the statute. Although the court opinion did not address damages, the statute does. Violation of the statute mandates treble damages and attorney fees. The award of attorney fees can far exceed the treble damages imposed. A wise landlord will make certain that there is no violation of the statute.
     The landlord in this case could have collected this fee and not violate the statute. The landlord could have advertised that as a tenant, the tenant could join the “club” which allowed use of the amenities. The landlord should have made it clear that the club was optional. When the tenant moved into the property, the landlord could have given him an application to join the club and an explanation of the fee. The tenant would then have a choice and, if he choice to join, would have paid the fee after he moved into the property. As long as the fee is collected after the tenant moves in and is optional, it shouldn't be a violation.
      I have long argued that many landlords violate this statute in the way they rent apartments. In Boston and other areas, it is very difficult to locate a rental unit unless a person uses a realtor. Realtors typically collect their fee when the tenant rents a unit. Their fee is protected by a listing agreement with the landlord which requires the tenant to pay this fee as a condition of renting the unit. In my opinion, this violates the security deposit fee just as the amenities fee paid by Hermida violated the law. It is not a violation for a tenant to pay a fee to a realtor for the right to look at the realtor's listings. It is only a violation when the landlord requires the tenant to pay the fee. If the landlord has to pay the fee, the landord should amortize the cost of the fee over a twelve month period and raise the rent.

Can a landlord charge for water and sewer?

In Massachusetts, in order for the landlord to charge for water and sewer, there are a number of specific steps that have to be taken. There has to be water conserving fixtures installed and the water has to be separately metered. A plumber has to certify as to the installation of water conserving fixtures. A document has to filed  with and approved by the board of heath concerning the water conservation fixtures. These steps have to be taken before the issue of changing the lease can be reached. If a landlord has not complied with these steps a tenant should be able to call the Board of Health who should notify the landlord that he can't charge for water and sewer charges.

This can be a complicated area of law and a landlord should consult and experienced real estate attorney to comply with the law.