Words Matter: Pfannenstiehl overruled by Supreme Judicial Court

October 14, 2016 by  
Filed under Divorce, Featured

by Matthew Solomon, Esq.

In one of the most awaited and watched divorce cases of this past year, the Supreme Judicial Court has overturned a lower court’s decision in the case Pfannenstiehl v Pfannenstiehl that a husband’s beneficial interest in an irrevocable, discretionary spendthrift trust should be included as a marital asset in a divorce. In its unanimous rejection of both the Appeals Court and the Probate judge’s rulings, the SJC has made a clear statement about trust interest and marital property in Massachusetts.

At the heart of the SJC’s decision was that the husband’s interest in the trust was merely an expectancy. The SJC found this to be so because the husband was a member of an open class of beneficiaries with changing needs. The class of beneficiaries was “open” as it consisted of all the issue of the husband’s father, in any generation (at present time 11). As such the number of beneficiaries could increase or (decrease) due to deaths and births. The court called it a “discretionary” trust which creasted “nothing more than an eligibility for distributions.” The SJC distinguished the present case from Comins v Comins, which the wife’s argument relied upon, because in Comins the divorcing wife was only beneficiary of the trust.

In addition, the SJC found that the language of the trust gave the trustees total discretion as to whether to make distributions to any of the beneficiaries and in unequal proportions. The beneficiaries had no right to income or principal, and the trustees could distribute funds to them in unequal portions. In fact, until the divorce, the husband and his siblings received distributions, the husband receiving a total of $800,000 from the trust during the period April, 2008 until August 2010. The husband’s distributions ended upon his filing for divorce.

The SJC’s ruling was in direct contrast to the Appeals Court’s decision. The Appeals court found that the trustees manipulated the trust by terminating the husband’s distributions upon the filing of the divorce complaint. One of the other important aspects of the lower court’s ruling was its determination as to how to value the husband’s interest in the trust. The lower court had ruled that the husband’s share of the trust should be calculated as 1/11 of the trust assets and awarded 60% of that value to the wife.

As discussed above, the fact that there was an open class of beneficiaries helped convince the SJC that the husband’s interest could not be determined. The SJC noted the discretionary aspect of the trust, and that the intent of the trust settlor was not to benefit the wife. The SJC further determined that the support language of the trust (the trustee had total discretion to use trust principal or income for a beneficiary’s “comfortable support, health, maintenance, welfare and education”) did not create a “present enforceable right to distributions” for the husband because there were 10 other beneficiaries who had changing needs as well as potential future beneficiaries. This made valuation of the husband’s share of the trust speculative.

The key distinction between the SJC and the lower court is what each focused on to determine the donor’s intent. The lower court’s decision that the ascertainable standard in the trust actually required that the trustees make distributions seemed to be based more on the unpleasant facts of the case then on the intent of the donor. The SJC examined that same language of the trust and found that this standard did indeed limit the trustees’ discretion and that it was the donor’s intent to benefit his children and later generations. By doing so, the SJC reaffirmed the established law regarding intent and trust language. This is a relief to those who draft trusts for the purpose of “asset protection,” as the lower court ruling seemed to question the reliable and standard language employed by these drafters to shelter their client’s assets.

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Why Write A Will – Basic Estate Plan

September 1, 2016 by  
Filed under Estate Planning, Featured

by Laura E. Days, Esq.

“In her first effort at being very, very good, she decided to make her will, as Aunt March had done, so that if she did fall ill and die, her possessions might be justly and generously divided. It cost her a pang even to think of giving up the little treasures which in her eyes were are precious as the old lady’s jewels.”

– Amy’s Will – Chapter 19 – Little Women by Louisa May Alcott

If you own something, you have an Estate: your own collection of personal treasures.

A checking account, car, home, retirement account, art collection; life insurance policy, savings account, pet, furniture, jewelry: these items and more form the basis of your Estate. Even if your Estate is modest, you have wishes and values that you want communicated in the event of serious illness or your death. You need a plan.

Contrary to common wisdom, estate plans are not only for wealthy people. An estate plan protects and distributes your property based on your wishes and the needs of your family. Also, it will ease part of the burden for your loved ones during difficult times.

Through the process of estate planning, your attorney assists you in defining your goals and creates the documents needed to ensure that your wishes are carried out, that your property is disposed of as you would like, and that your family is protected.

The basic estate plan includes documents such as a Last Will and Testament, a Health Care Proxy, a Durable Power of Attorney, a Living Will and possibly also a Living Trust. Each document has its own specific purpose in reaching the general goal.

Last Will and Testament
A Will distributes your property to specifically named individuals, trusts, or charities based on your preferences. It allows you to nominate a person whom you trust – an executor or personal representative – to carry out these wishes after your death. This person is legally obligated to act in your interests after your death following the instructions provided in your Will.

Without a Will, the laws of intestacy will govern how your Estate is distributed. A Probate Court judge will appoint someone to make decisions for you, and your wishes may not be carried out as you would have liked, but rather as the law states that they should or as your personal representative guesses.

For example, many people are surprised to learn that if they are married and die without a Will (intestate), their property might not simply go to their spouse. It may be divided between their spouse and their children, even if the children are minors, or between their spouse and their parents or other relatives.

Speaking of children, one of the most important decisions that you make in your Will is to nominate a guardian for your children. If you die without naming a guardian to care for your young ones, the probate judge will make the determination of who should raise your children. While great care is taken to find the best person most likely to act in the best interests of your children, not naming a guardian puts the children at risk of court-battles, family disputes and potentially even foster care. While your nominee may not ultimately assume responsibility of your children, when you name a potential guardian you give the court a clear directive of your wishes. In addition, when determining who you would prefer as a guardian, plan for an alternative guardian if your first choice is unable to serve.

Durable Power of Attorney
A Durable Power of Attorney allows you to nominate a trusted family member or friend to act on your behalf as an attorney-in- fact. This person will be authorized to handle financial and business transactions including paying bills, filing your income tax returns, moving money for you, hiring home health aides or others, or selling real estate if you are incapacitated or otherwise unable to do it yourself.

Health Care Proxy
Much like a Durable Power of Attorney, this document allows you to designate someone you know and trust to act on your behalf with regard to your medical care. In the event that you are either unable to communicate your wishes or do not have the capacity to make medical decisions, your health care agent will do so for you. Your agent’s decisions will have the same authority as yours would.

When making the decision about who should be your health care agent, you should take into account your own religious and moral beliefs, and choose a person most likely to carry out your wishes or, in the absence of stated directions, make decisions for you based on your best interests.

It is extremely important that you not only talk with your agent about your specific wishes, beliefs and philosophies relating to your health care, but that you also find a second person whom you feel could act on your behalf. You may wish to consult with your doctor, religious advisor, and trusted loved ones before you make a decision.

Your agent will work with your health care team, seeking their advice and counsel prior to making any choices that would affect your wellbeing. Only after considering all options regarding diagnosis, prognosis, and treatment of your condition, will your agent either consent to or refuse medical treatment. He or she will have access to your medical records, as you would, in order to make informed decisions.

Living Will
A Living Will – a witnessed statement of intent, indicating that if you ever become permanently unconscious or have irreversible brain damage with a severely diminished quality of life that you would not want to have tube feeding, hydration, mechanical respiration, antibiotics, or cardiac resuscitation – is an important document for your health care team and agent to have. It acts as a guide for them and as evidence of what your wishes relative to end of life care would be if you were ever in that condition and could not communicate for yourself.

Living Trust
A Living Trust is an excellent tool for managing money, paying bills (including college tuition), and making sure basic needs for the children are met if both parents die before their children are grown up and mature enough to handle their inheritance. You will nominate Trustees to oversee the money, and make distributions to care for your children. The Living Trust is not part of your Last Will, therefore there is no need to file costly and time-consuming annual accountings with the Probate Court, and more money will go to your children. Once your children reach a mature age, they will begin to receive portions of their inheritance outright from the Trust.

Alternatively, a Trust could be used to manage real estate or other assets in case of your own incapacity, and to direct the passing on of assets after your death. This makes a Trust a versatile tool for those who are terminally ill or forsee a time when they might no longer wish to manage their own assets as they age.

No one wants to contemplate his or her own mortality. However, forming and executing a basic estate plan will provide you with a sense of tranquility and satisfaction for having provided your loved ones with clear evidence of your wishes and esteem. Your plan will speak for you and, in a not insignificant way, assist them in dealing with your illness, incapacity, and death.

“I felt I ought to do it, for life is uncertain and I don’t want any ill feeling over my tomb.”

Amy’s Will – Chapter 19 – Little Women by Louisa May Alcott

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Mediator as Truthsayer

by Laurie Israel

Mediation is not one monolithic technique. Mediators and mediation theorists may categorize different types of mediation techniques into different theoretical boxes, such as “facilitative,” “evaluative” and “transformational.” But the categories all seem to bleed into each other.

At its core, mediation has as much variety as there are mediators, mediation clients and issues being mediated. Because of this variety and variability, mediation seems more like art than science, with unpredictable pathways through the process, and surprising results, if the mediator gives the clients space to evolve in their understanding of each other and the dispute.

There are various philosophies that swirl around mediation. One says that mediation is “client-directed.” Whatever the clients want, that’s what the mediator arranges in settling the clients’ agreement. The problem with client-directed mediation, is that the skills, background, and experience of the mediator are discounted and not taken advantage of by the clients.

This is true especially in an area such as divorce mediation or prenuptial agreement mediation, where the mediator (generally) has extensive knowledge of the operant law and the possibilities of resolution for each of the issues involved. There is no reason to expect a mediation client to be an expert in divorce law or the laws pertaining to prenuptial agreements. An understanding of these laws are important for the clients, and can enlighten and enrich the process of dealing with the practicalities inherent in ending a marriage or formulating a prenuptial agreement.

But what about that mediation rule that mediators are not supposed to give legal “advice” during the course of a mediation, but can provide legal “information.” What is the difference between legal “advice” and legal “information”? That’s a slippery slope that all mediators deal with on a daily basis.

A mediator cannot pretend that he or she knows nothing about divorce law or the law of prenuptial agreements. That would be absurd, because many of the issues that the clients are addressing are legal ones, and certainly, the clients are not supposed to be experts in the law. So, legal information must be rendered by the mediator, at least initially, subject to input by the clients’ reviewing attorneys (if they have any).

What about the “elephant in the room” that sometimes comes up in mediation? This is the little but very important fact that is unsaid, but lingers in the background, infusing the entire mediation with an element of untruthfulness. That elephant may need to be acknowledged and discussed openly in order to have all the relevant information accessible to make a well thought-out agreement by the clients.

How, when (and should) the mediator bring up the “elephant in the room”? Some of these elephants are quite large and important. Not saying something reminds me of the Hans Christian Andersen tale “The Emperor’s New Clothes.” We as mediators frequently face this issue. Should the mediator say something when he or she sees something, even if the clients have not brought it up, like the message in the subway, “If you see something, say something.” Or should the mediator remain silent until (and unless) the clients bring it up?

Clients engage us as mediators for many reasons. Sometimes they simply view mediation as a money-saving way to resolve their dispute. At times they choose us because they are afraid that engaging attorneys will make their disagreements more difficult to resolve and may be detrimental to their ongoing relationship. They generally, carefully choose their mediator based on the mediator’s experience and background, and also their sense of whether the mediator’s personality and approach will be compatible to theirs.

Mediation clients don’t choose a computer program or a machine. They choose a real person, with intellect, his or her own background and experience, and knowledge of the operant law in their dispute or issue. How silent should the mediator be in the process? When should the mediator follow and when should the mediator lead? Should the mediator say the “truth” as he or she sees it when an issue comes up that the parties may not understand clearly? Or should the mediator remain silent?

The danger being a “truthsayer” when you’re a mediator, is that your “truth” (sometimes unbeknownst by you) may support or give the appearance of supporting the position or view of one or another of the clients. This can happen even if the connection between the “truth” said and a party’s position is quite attenuated, because mediation clients can sometimes be very fragile. As a result, the mediator becomes tainted with perception of bias or lack of neutrality. Usually, this immediately ends the success of the mediation. So being a mediator “truthsayer” can pose great risks to the process.

However, there are also strong benefits for saying the “truth” as you see it, at least sometimes. Mediators often try to appease both sides of the mediation. In doing so, the mediator can be perceived as untruthful, and both sides can lose respect for the mediator and the mediation process weakens. For this reason, a word of “truthfulness” by the mediator can have a powerful effect in mediation — perhaps leading to a resolution, even if it temporarily seems to support the position of one side rather than the other. Both sides can feel like there is a person in the room that can provide feedback that can help them resolve their dispute.

The mediator’s truthfulness should always be balanced with a demonstration of support and respect for other mediation client and should include an explanation of why the mediator sees the issue that way. It’s dangerous, but can move things strongly forward.

If it’s done in a non-threatening way, the other party will also have a chance to express and clarify his or her view. As a result, greater mutual understanding on the issue by the clients can occur. Even small changes in view might lead to resolution on the issue and could have a ripple effect to lead to other agreements in the mediation. Bringing the parties to agreement may be better served by an active mediator, even though much of the activity might be subtle.

The most important factor in mediation success and not allowing the mediator’s “truth” derail the process is that the mediator has respect for both clients. This respect should be evident and actual — demonstrated by words, listening, comments, and structure — or else the moment of “truth” might be too dangerous.

In this safe setting of respect, when the mediator offers his or her “truth” in the right way at strategic times in the mediation, the small changes and cumulative understandings that can make the mediation successful can be greatly facilitated.

© Laurie Israel 2013

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Where Does Marital Mediation Fit In?

by Laurie Israel

During the past quarter century, academics and others writing about mediation have characterized styles of mediation as belonging to one of three categories: “facilitative”, “evaluative” and “transformative”.   The categories are quite clearly defined.

Facilitative Mediation

“Facilitative” mediation (the original type which started to be broadly practiced in the 1960s and 1970s) involved a process designed to help clients come to agreements.  Often this was practiced in volunteer mediation organizations dealing with small business or “neighbor” disputes.  The mediators tended to be trained in mediation, but not generally trained in substantive knowledge of the area they were mediating.

Facilitative mediation has matured so that mediators are now not only trained in mediation, but often are familiar with the substantive law pertaining to the dispute that is the subject of the mediation.  Facilitative mediators range in their views as to how important the substantive “law” is to mediating a dispute.

Facilitative mediators use standard mediation practices such as finding the interests behind the parties’ positions, reframing, active listening, validating points of view, defusing “hot” speech and helping clarify communication misunderstandings.

Facilitative mediation is goal oriented, the primary goal being for the parties to come to agreement. Traditionally, attorneys are not present during the mediation sessions.  Sometimes there are “caucuses” in which the mediator might meet separately with one or the other party.

The clients make their own decisions, with the mediator “facilitating”.  The mediator structures the process, and leads (sometimes very subtly) the parties towards resolving their disputes. The facilitative mediator does not give advice, nor does he or she intersperse the mediator’s own views into the mediation.

Evaluative Mediation

The second type of mediation is called “Evaluative” mediation because the mediator’s role is to evaluate the dispute presented to him/her through the lens of existing law.  This mediator sifts through the “facts” of the dispute and seeks to predict how the dispute would be decided by a judge or jury if brought to court.

Often evaluative mediation is entered into after a court case is in progress. Attorneys are usually present. Caucuses in which the mediator might meet separately with one or the other party are frequent.  In fact, at times the parties never meet face to face, and the mediator goes from room to room, practicing what is called “shuttle diplomacy”.  The goal is to get the litigating parties to come to agreements using the mediator’s evaluation of the relative strengths or weaknesses of party’s lawsuit to encourage parties to come to settlement.

Transformative Mediation

The final theoretical type of mediation is “Transformative” mediation.  The definition of this type of mediation was formulated by Joseph Folger and Robert Bush in the early 1990s.  Both Folger and Bush are academics, Folger now at Temple University; Bush at Hofstra University School of Law.

Folger and Bush theorize that mediation has the potential to effect deeper changes in people than just resolution of specific disputes.  It has the capability to transform, not only the relationship between the parties, but even the character of the individuals involved.

According to Folger and Bush’s construct, the key to this transformative change in mediation is “empowerment” and “recognition”.  Empowerment here is used in the sense of a person’s power to make his or her own decisions.  A person is empowered through gaining clarity about goals, resources, options, and preferences.  The person uses this information to make his/her own clear and deliberative decisions during the mediation process.  “Recognition” is considering, acknowledging, and having empathy for the other person in the mediation.

The mediator’s focus is to look at the parties’ interactions, and identify opportunities to assist the parties in gaining “empowerment” and promoting “recognition”.  The process is open-ended, unlike facilitative and evaluative mediation.  The goal is not necessarily towards “settlement” – settlement is presented as one possible outcome.

Where does Marital Mediation fit in?

Is marital mediation (mediating disputes between married couples) facilitative, evaluative, or transformative?

First of all, like all mediation, marital mediation styles will depend on the personality, skills, preferences, and background of the mediator.  Mediators come from all walks of life, and with varying experiences and trainings. Mediators are not generally locked into one of the three categories. Every mediator will do his/her job differently and most combine mediation strategies to seek to make the mediation effective. Mediation, in that sense, is more like an art than a science.

Most of what marital mediators do falls under the category of “facilitative” mediation.  However, in marital mediation often the mediator is not as concerned with helping parties get to an agreement, as with promoting understanding.  In contrast, in divorce mediation, the goal is to come to the many specific agreements needed to complete a comprehensive divorce settlement agreement.  As a result, divorce mediation has a specific goal and may be faster-paced.

In a marital mediation, the parties are not getting along in certain aspects of their relationship.  Often this discomfort and anger has spread over to their entire relationship making their interactions quite corrosive.   Getting them to have one agreement on a troublesome issue may be helpful, but facilitating mutual understanding is generally more important.  That is why in marital mediations, a written agreement often does not result from the process.

In a marital mediation, a couple need not solve all of their problems.  There might be only one issue worked on, and when there is resolution of that issue, the parties are able to solve other issues by themselves, and the ongoing relationship improves.  So in a sense, the process is “transformative” because the mediation has transformed the marriage.

Sometimes there might be elements of “evaluative” mediation in marital mediation sessions – particularly if the mediation clients are close to divorce and want to know what the terms of a divorce might be in their factual situation.  In these types of marital mediations, the clients may wish to enter into a postnuptial agreement to clarify their positions and relieve the stress of uncertainty in connection with financial issues that are troubling them.

Unlike in “facilitative” mediation and “evaluative” mediation, caucuses in marital mediations are discouraged.  Caucuses involve “secret” messages to the mediator that can become very awkward and destructive to the marital mediation process.  In marital mediation the point is to make all lines of communication clear.

The Folger and Bush ownership of, and construct around the term “transformative” in “transformative mediation” is problematic.  They have essentially co-opted the general term “transformative” to mean a mediation based on “empowerment” and “recognition”.  This puts a conceptual straightjacket on other forms and blends of mediation that both clients and mediators feel are “transformative”, within the generally accepted meaning of that word.

Many marital mediators who primarily use “facilitative” mediation, find that helping married couples solve disputes through standard mediation techniques and clarifying  longstanding misunderstandings is “transformative” for the clients. A couple that stops arguing about something (with the help of a mediator) has learned something important about their interactions – and perhaps themselves — that they can apply to other situations.  This can be transformative to them.

And one could say all effective marital mediation is transformative, whatever method of mediation is used.  Forcing  “transformative” mediation to be based on Folger and Bush’s construct of “empowerment” and “recognition” is too limiting.

John Fiske, a Massachusetts mediator, talks about the essence of spousal conflict being caused by issues relating to “control” and “acknowledgment”. Although these terms seem similar to Folger and Bush’s “empowerment” and “recognition”, the first prong of Fiske’s construct is quite different.

Fiske, like Sharon Strand Ellison in Taking the War out of our Words: The Art of Powerful Non-Defensive Communication (1998, 2007), http://www.pndc.com/ believes that power struggles between spouses is the central theme of most marital conflicts. Fiske encourages couples in marital mediation to look at their behavior in terms of power and control, because when you scratch the surface, that is what they are generally arguing about. Fiske also posits that lack of respect or acknowledgement of the other spouse’s actions and views, aside from being usually not fact-based, is a destructive element in a marriage.  Acknowledgement encompasses being heard, understood, and respected. A mediator working with the issues of “control” and “acknowledgement” in a marriage can help a couple greatly.

I find Fiske’s construct of “control” and “acknowledgement” more useful in my marital mediations than the Folger/Bush construct.  To see how Fiske’s construct plays out in the context of typical spousal disputes relating to driving automobiles, see my PowerPoint entitled “Driving your Spouse Crazy — Literally”. http://www.maritalmediation.com/2013/11/driving-spouse-crazy-literally/

Unlike facilitative (and evaluative) mediation, the Folger/Bush model of transformative mediation allows and even encourages the parties to express emotions and bring up discussions of past events.  Marital mediation is more like “facilitative” mediation in that respect, in that emotions and past events are generally  (and intentionally) excluded from the mediation.  This is also one of the differences between marital mediation and marital therapy or marital counseling.  In the latter, emotions and past events are often explored and used to help a couple improve their relationship.

Marital mediation is fact-based, communication based, and focused on the present and future.  But even though the mediation does not focus on past events, and personal and family histories, in a successful marital mediation, the result can be seen as “therapeutic” in the sense that if a marital conflict is lessened, the parties feel better about each other and their marriage.

Marital mediation is similar to “transformative” mediation in that it is open-ended.  Parties may come to the mediator with a specific dispute, but more often they come with many disputes. Taking time to solve one of them, and not forcing a solution or agreement to a particular problem in one session is extremely helpful to marital mediation clients.  Since coming to “an agreement” is not primary (but coming to understanding is), marital mediation is slower-paced than facilitative mediation, but in general, clients will use a similar number of mediation sessions in all.

Where does marital mediation fit into the construct of “facilitative”, “evaluative” and “transformative”?  It has characteristics of all of these, as well as John Fiske’s construct of “control” and “acknowledgement”, depending on the situation, the mediator’s preference, experience and style, and the clients’ needs and visions for what the marital mediation should accomplish.

© 2015 Laurie Israel.  All Rights Reserved.

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Can You Start A Divorce Action On Facebook?

May 28, 2015 by  
Filed under Divorce, Featured

by Matthew Solomon, Esq.

In a March of 2015 ruling that is as groundbreaking as it is inevitable, a judge in New York (in the case, Baidoo v. Blood-Dzraku) allowed a woman to serve divorce papers on her estranged husband of six years. What might, at first, seem like a bizarre and unwise decision by a lower court judge actually is a well-structured and rational ruling that seeks to adapt a procedural aspect of divorce to the technology of social media.

The first step in a divorce is for the plaintiff to “serve” the defendant. In other words, the person filing the divorce is required to notify their current spouse that they have filed paperwork with the court by delivering a copy of the paperwork to the other spouse. One of the most common problems that people have is locating the person they are trying to have served. Given that divorce can be time-consuming and expensive, any delay in service will only add to the cost and time involved.

The plaintiff in New York had a particularly challenging situation because her husband had no known address, no known place of work or business, and no known relatives. New York’s Domestic Relations Law allows plaintiffs to request permission to use one of three alternative methods of service rather than the traditional in-hand delivery method. The first two methods require that a plaintiff know of a defendant’s “actual place of business, dwelling or usual abode.” The third method involves publication of the paperwork in a newspaper selected by the court, once a week for three weeks. The plaintiff in Baidoo attempted the first two methods of service, but was unable to locate her husband. Further, the court agreed with the Wife that the chance that the defendant would ever see the publication in a newspaper was slim to none regardless of what newspaper the Wife publicized in and did not require that the Wife publicize at all.

Fortunately for the wife in Baidoo, plaintiffs in New York also have the option to request alternate service in addition to the three already mentioned methods. That is exactly what the wife did, and the court permitted her to create her own method of service that was appropriate for this particular situation. In making its decision, the court determined that it was an “impossibility” to personally deliver the summons on the defendant. The court also stated that the plaintiff had to prove that sending the summons through Facebook can reasonably be expected to give the defendant actual notice that he is being sued for divorce.

The court also had to address the Federal constitutional principles underlying services of process. As the court said, “The central question is whether the method by which the plaintiff seeks to serve the defendant comports with the fundamentals of due process by being reasonably calculated to provide defendant with notice of the divorce.” The Wife was granted permission to serve the defendant with the divorce summons using a private message through Facebook. The transmittal of the summons was to be done by Wife’s attorney, and was to be repeated once a week for three consecutive weeks or until acknowledged by the defendant.

There is no denying the role that technology plays in the world and there is no slowing down its impact on all aspects of our lives. For the court to recognize these facts, apply it to this procedural problem in divorces, and then carve a limited exception that seems to understand how social media can be a valuable tool to the courts is extremely encouraging and exciting.

As this is a lower court New York state decision, anyone contemplating Facebook service should consult with an attorney in the state of the divorce action, and rely on the court’s specific ordering, and conditioning of the order with other requirements, if any. And it is important not to attempt Facebook service until you have a court order permitting it in hand.

©2015 Matthew Solomon.  All rights reserved.

 

 

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Marvin Gaye, “Here, My Dear”, and a Creative Divorce Settlement (Part 1)

April 24, 2015 by  
Filed under Divorce, Featured, Recent Articles

by Matthew Solomon, Esq.

If you’re a fan of good music and you’ve never heard Marvin Gaye’s 1978 record, “Here, My Dear”, then I strongly suggest that you take a listen. If you’re a fan of good music and also someone going through a divorce, or thinking about divorcing, then listening to this album is a must. This is a record crafted and created straight from the pain, anger, narcissism, embarrassment, and resentment that many family lawyers see in their clients.

Marvin Gaye married Anna Gordy in 1962. Anna was seventeen years older than Marvin, who was twenty-two at the time they married. At this point in his musical career, Marvin was very young and inexperienced and had only one studio album under his belt. After fourteen years of marriage, Anna filed for divorce. The couple had already been living apart for two years and both were accusing the other of infidelity. As the divorce proceedings dragged on, Marvin’s personal assets dwindled and he was in arrears for back taxes as well as temporary alimony payments.

According to Curtis Shaw (Marvin’s lawyer at the time), the house that Marvin was living in with another woman and his kids was about to be padlocked due to his financial troubles. Attorney Shaw came up with a unique and creative idea on how the couple could reach an agreement with regard to the financial aspect of their divorce. This is what he said:

“There weren’t many joint-estate assets because during the Marvin/Anna years they lived high on the hog…Meanwhile, Anna was demanding a million dollars. How was this ever going to get resolved? I came up with a plan. Marvin was getting $305,000.00 advance per album at this point, and I suggested that he pay the next album’s advance to Anna, plus the first $295,000 of earnings. That meant she’d have $600,000. Anna went for the idea. I got Marvin to go along, and the judge wrote up the order.”

From this solution, Marvin Gaye’s album “Here, My Dear” was born.

Part 2 will delve deeper into the individual tracks of the album and examine how Marvin’s lyrics imitated the language he heard from the judge and the lawyers.

 

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Can An Alimony Obligation be Modified under terms of The Massachusetts Alimony Reform Act of 2011?

April 7, 2015 by  
Filed under Divorce, Featured, Recent Articles

by Matthew Solomon, Esq.

When the Massachusetts legislature enacted the Alimony Reform Act of 2011 (the “Act”), attorneys and previously divorced individuals were left with uncertainty as to how this law would affect prior alimony agreements and judgments.  (For simplicity here, I’ll refer to both as “judgments”)

Just recently, in three separate cases (in each, a ex-spouse seeking retroactive application of the Act to end spousal support), the Supreme Judicial Court held that terms of the Act does not  apply retroactively to alimony judgments entered before the effective date of the Act — March 1, 2012. These three cases involved separation agreements that were incorporated into the judgment of divorce and were merged into it, which means the provisions of the agreement regarding alimony were potentially changeable by their terms under the jurisdiction of the Family and Probate Court.

In all of these cases the person paying alimony sought to terminate his alimony payment obligations based on the Act’s language that alimony “shall terminate upon the payor attaining the full retirement age.” G.L. c. 208, §49(f).   In one of the cases, the ex-husband also sought to terminate his alimony obligation based on the Act’s language that alimony, “shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse…” G.L. c. 208, §49(d). The SJC delivered a consistent and unambiguous conclusion in all three cases: the retirement and cohabitation provisions of the Act do not apply to divorces that were final before the effective date of the Act, even if the alimony provision was merged into the judgment

In Chin v Merriot SJC-11715 (Jan. 30, 2015), the ex-husband had already reached the age of retirement when his divorced was finalized 2011.   In addition to claiming termination due to his retirement, he raised the cohabitation provision under M.G.L. ch. 208, section 49(d) as a reason for termination of alimony.  The SJC held that both provisions were prospective only.  Since in his case, the alimony provision was merged into the judgment of divorce, the ex-husband could have shown a material change of circumstance warranting modification or termination of his alimony obligation, but did not meet that burden of proof.   This option under the pre-Act law of modification is still available for ex-spouses with merged alimony judgments, because the issue of alimony remains under the continuing jurisdiction of the Probate and Family Court.

In Doktor v Doktor, SJC-11727 (Jan. 30, 2015), the ex-husband reached retirement age after the 1992 divorce.  The alimony provision merged into the judgment.  The SCJ held that presumptive termination of alimony at full retirement age in the Alimony Reform Act is prospective and does not apply to cases that were concluded before the law went into effect.  In this case, the ex-husband did not establish that there had been a material change in circumstances that should warrant modification of the alimony provision.  The court also said that permissible changes in pre-Act merged judgments due to difference in “durational limits” between a divorce judgment and the Act within the meaning of M.G.L. ch. 208, section 4(b) does not include an event such as remarriage, cohabitation, or reaching the age of retirement.

In Rodman v Rodman, SJC-11726 (Jan. 30, 2015), the alimony provision in the 2008 divorce also was in a separation agreement that merged into the judgment. The ex-husband argued (unsuccessfully) that that in such a case the Act applies, because a merged judgment is “prospective” in effect.  The Court held that the section 49(f) provision presumptively ending alimony at retirement age for social security is not applicable, and does not apply retroactively to both merged and surviving pre-Act separation agreements. The Court further explained that the only subset of divorce cases that went to judgment before the act went into effect that are modifiable pursuant to the terms of the Alimony Reform Act are those where the alimony order (1) merged into the underlying judgment, and (2) exceed the durational limits for support provided under the act.

The decisions in these three cases had been highly anticipated by family law lawyers. At this point, it seems that any party to a divorce that was final prior to March 1, 2012 seeking to terminate alimony payments under the new retirement and cohabitation provisions of the Alimony Reform Act should be advised that their chances of success are slim to none. However, a payor who believes there has been a material change in circumstances may still apply to the Court in the form of a modification action for a reduction or elimination of alimony payments, if the alimony provision has merged into the judgment, subject to the Family and Probate Court’s continuing jurisdiction.

By speaking so decidedly and unequivocally, the SJC has provided attorneys with a precise framework within which they can advise clients seeking to modify or terminate their alimony payments on the basis of retirement or co-habitation, and also to contest duration of alimony for pre-Act divorces where the alimony judgment merged.

Note that under Section 4 (c) of the Act, as in pre-Act law, no litigant may seek modification of an existing alimony judgment in which the parties have agreed is not modifiable, and which “survive” the judgment.  This puts divorced individuals who bargained and negotiated prior to new alimony provisions contacted within the Act in a permanently unfavorable position, compared with individuals who had negotiated merged pre-Act judgments, and those in post-Act divorces.

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Town’s Policy for Student Residency Put to the Test

December 22, 2014 by  
Filed under Featured, Recent Articles

By Matthew Solomon, Esq.

Matthew Solomon smallAccording to a Massachusetts Superior Court judge, a town cannot refuse to enroll the son of a divorced resident in its public schools solely on the grounds that on most school nights the child slept at his mother’s home in another community. The Town of Wayland wanted to rely strictly on the number of nights that the child actually slept in town as the determinative factor in deciding whether the child was a resident. As a result of his parents’ shared custody agreement, the child spent 7 out of 10 nights with his mother in Framingham. The Town has its own guideline for residency (written after the case was filed), which requires that a child spend at least 3 out of 5 school nights  (Sunday through Thursday) in Wayland. In this case, the parents of the child sought to have their 8th grade son return to the Wayland school system after placing him in a private school in the 4th grade to address his dyslexia.

The law in Massachusetts guarantees every person with the right to attend the public schools of the town “where he actually resides.”  The judge in this case found that Wayland’s residency policy, often called a “pillow-count” rule, did not account for several other factors that help determine whether the child was “actually residing” in Wayland. The judge stated that residency should also be determined by looking at the child’s domestic, social, and civic life.  In addition, the judge pointed out that the Town of Wayland’s residency policy also did not seem to account for families comprised of foster parents, guardianships, split families, children living with relatives, and with children who are institutionalized.

In looking at these factors, the judge found that since the child previously attended Wayland schools through the 4th grade, there was a good possibility that he would be able to re-establish old relationships and that this was important considering that he would be entering high school the following year.  The fact that the child actually resided with his father in Wayland was also given weight. Finally, there was evidence that Wayland was the focal point of the child’s social and civic life. By focusing on these factors, the judge was clearly expanding the inquiry that public school systems need to carry out when making residency determinations.

Another aspect of this case that should not be overlooked is that the child involved was eligible for special education services. Despite the Town’s insistence, the judge in this case did not require the parents to obtain a residency ruling from the Massachusetts Bureau of Special Education Appeals, a process that can take a long time and that could have caused the child to be enrolled after the school year had started. The judge also warned the Town that its desire to require an additional proof of residency obstacle solely for parents of children who are eligible for special education was on its face discriminatory.

When determining residency for public schools in Massachusetts in a joint parenting situation, review Ames v. Town of Wayland.  Also obtain a copy of the town’s “Residency Guidelines” for enrolling a student in the public schools.

Ames v. Town of Wayland, Mass. Super. Ct. No. 14-6767 (2014).

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Eliminating “Hot Speech” in Marriage

As published in The Huffington Post, 9/10/13.

by Laurie Israel

We live in a very fast world.

Information is shared instantly.  A public figure might do something at 9 a.m., and by 9:15 a.m. it’s all over the Twitterscape and Facebook.  By 10 a.m. it is on the internet, which now functions as mainstream media.

Remember the beginning of email?  Email was a major breakthrough that changed the way people communicated. Work has become more efficient. Personal exchanges are facilitated. Text messaging is even faster than email because you hear a little beep on your smart phone and, of course, you are impelled to respond.  Text messaging is now a primary way people under 40 (and some older) communicate in their daily lives.

The rapidity of communication promotes “hot” speech.   “Hot” speech is angry and ill-considered.  It is made without much forethought when in an excited or emotional state.

For instance, you get an email containing statements, some of which you disagree with.  You respond immediately.   Since you can’t help but check your emails every three minutes (time yourself), you notice the response to your response, to which you respond.  This causes a flurry of emails with a great deal of reaction but not a lot of reflection or forethought.

But the very “hottest” speech and the most uncontrollable is when you are actually speaking with other people face to face.  This “live time” talk goes on without the pauses for thinking and composing your thoughts that can occur when you write an email or a text message.

Hot speech between spouses can be very damaging to a marriage. When you’re with your spouse, you don’t have to act as civilized as you do in social situations with friends or at the workplace. With your spouse, the boundaries are lowered.  In marriage, sometimes, people act at their worst – because they can with that one person.  Spouses tend to let everything hang out.  That causes a lot of problems and can even lead to divorce.

In my work as a marital mediator, http://maritalmediation.com, I’ve worked with couples whose communication is at a low point.  Everything out of a spouse’s mouth seems (and actually might be) negative. There is anger and frustration in every verbal interchange.  Contempt is rampant. The reactivity gets worse and worse. The couple can’t seem to break the pattern of negative interaction.  It is clear that these people are headed for divorce.  No one can live that way!

In situations like this, I use a special technique.  I call it the “writing-notes-in-longhand” technique.  It is very effective in breaking through negative communication patterns.

Here’s what I do.

I ask the couple to do the following as homework for an entire week:  Make sure all communication during the next week is by handwritten notes. And I mean all communications.  Even the mundane ones, like “Can you walk the dog now?”  And I mean handwritten – not email, and not text messaging.

This does several things:

1.  It slows down the “hot” speech.  Now you have to sit down and handwrite a note when you want to say something.   You really have to think when you write.  Writing in longhand slows you down.  Your spouse (or partner) has to do the same.  It’s like taking an adult “timeout” before reacting.  It builds in time to consider the other’s point of view and how you want to express yourself in the most effective (perhaps even kind) way.

2.  The slowdown changes the entire tone of the interactions.  Writing communication in longhand promotes accurate and precise formulation of issues.  It helps you collect your thoughts and contemplate what you want to say.  Anger dissipates quickly.  Emotions calm down.  Furthermore, reading what your partner writes gives you a chance to absorb what the other has said without your limbic brain (emotions) getting in the way.

 3.  By slowing down the verbal interchange, you can focus on your concerns and needs in what you write.   This is consistent with a mediation technique which is to focus on a party’s “interests” rather than “positions”.  When you hold to “positions”, it leads to non-thought and anger, and leads to stalemate.   Identifying and expressing  your “interests” rather than your “positions”,  you and your partner can enter an area of understanding and mutual accommodation.

4.  When slowed down, a couple starts to see the fallacy in their anger.  Often the anger is caused by miscommunication, misunderstanding, or a lack of compassion.  Slowing down helps you see the other person’s point of view and promotes sympathy and respect.

5.  Remember that anger is an emotion.  Nine times out of ten, anger is an illogical or overblown emotion to the situation you are reacting to.  Anger is destructive.  Writing communications promotes logic and generally stops anger it in its tracks.  Then you can start really dealing with the issues at hand.

6.  Anger is not a good thing.  Some of the modern psychological literature says that anger is a healthy response and you should not suppress it.  I disagree with this conclusion.  I think anger builds anger, both in the person expressing it and the person receiving it.  It’s not a good way to solve problems.  By taking a timeout, you can become calm.  You are no longer in “real” time.  Emotions abate.  When you write, you will probably express your frustration in a more rational and less confrontational way.   It’s good to be pacifistic in your communications – especially with your spouse.

So give the “writing-notes-in-longhand” technique a try.  It promotes a calm and placid atmosphere where people can feel heard and accepted.  It’s a place where people can be thoughtful instead of reactive.  It helps you lead by your mind instead of being led by your emotions.  It’s a manifestation of patience. And patience can lead to many good things, including regaining a loving space with your spouse or partner.

© Laurie Israel 2013.

 

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What is a “Surgical” Divorce, and How to Get One

December 6, 2011 by  
Filed under Divorce, Featured

Maybe you and your spouse want to get a divorce and want to do it in the simplest way possible.  Your situation is fairly straightforward.  You and your spouse have already figured out the basic terms.  (You’re still fairly friendly with each other and talking.) You both want to keep peace in the family and get to a fair result.  You both want to keep fees low and avoid complexity.  You both just want to get divorced.  Perhaps you fit the profile for a “Surgical” Divorce.

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