Child Support Guidelines and You

On August 1, 2013 Massachusetts updated the Child Support Guidelines. If you are currently receiving support through a child support order that was entered prior to August 1, 2013 you may be entitled to a modification of that order. The updated Child Support Guidelines contain a number of new provisions that may not have been considered when your support order was entered, the most common change that I am seeing in my own practice is the following:

"These guidelines are based upon the child(ren) having a primary residence with one parent and spending approximately one-third of the time with the other parent. If parenting time is less than one-third for the parent who is not the residential parent, the Court may consider an upward adjustment to the amount provided under the child support guidelines."

What does this mean in plain English? If your child's other parent (the non-custodial parent) does not have parenting time at least 30% of the time and they are currently paying guideline support, that number may be too low. An example would be that over the course of a typical 31 day month if the non-custodial parent has the child less than 10.23 days than the guidelines (and thus your support award) may be modified up to reflect this lack of parenting time. A "typical" visitation order may reflect alternate weekends with one weekly dinner visit, or 10 days per month (assuming a weekend is Friday - Sunday). If your child is having less visitation with their non-custodial parent then that, you may be entitled to a modification of your child support.

Ensuring the proper level of support for your child is of paramount importance and you should consult with a qualified family law attorney to discuss your rights. As always my office offers free consultations either in person, or on the telephone.

Pay Attention to New Jersey

The next battle over recognition of "same sex" marriage may be bubbling over in New Jersey, where on September 27, 2013 Judge Mary Jacobson in Mercer County Superior Court (Trenton, NJ) issued a ruling that required New Jersey to permit same sex couples to marry. Judge Jacobson noted that New Jersey allows for civil unions, but that certain federal benefits like pensions and family leave are not provided under those civil unions. Using the rationale of the Supreme Court's decision in United States v. Windsor, Judge Jacobson set forth that:

"This unequal treatment requires that New Jersey extend civil marriage to same-sex couples to satisfy the equal protection guarantees of the New Jersey Constitution as interpreted by the New Jersey Supreme Court... Same-sex couples must be allowed to marry in order to obtain equal protection under the New Jersey Constitution,"

The decision in Garden State Equality v. Dow (L-001729-11) is under appeal by the New Jersey Attorney General John Hoffman at the direction of Governor Chris Christie. AG Hoffman has said that he will ask Judge Jacobson to put her order on hold, and if she refuses, he will petition the State Supreme Court to act swiftly to stay the order.

Why is this decision possibly significant? Because it's likely headed to the State Supreme Court and then possibly to the United States Supreme Court. The issue is whether or not State's that recognize civil unions violate the 5th Amendment if they do not allow "same sex" civil union couples to enjoy all of the benefits afforded to married opposite sex couples. My guess, based upon the Court's decision in Windsor, is that Supreme Court would say that if you permit civil unions, you must provide the exact same rights to civil union couples as to opposite sex married couples -- making civil unions and marriage exactly equal (what a novel concept).

My feeling is that the label civil union itself is problematic and that if civil unions receive the same benefits (state and federal) as marriage than you should call them both the same thing. If something were equal you wouldn't need a different name for it. Currently New Jersey, Illinois, Hawaii and Colorado recognize civil unions but not marriage - my feeling is that the domino that is New Jersey may very well drop those four states in the "same sex/opposite sex" marriage equality department bringing the total number of states which permit all consenting adults to enter into a marital relationship regardless of sexual orientation to seventeen (17) states and the District of Columbia and New Mexico looks like it's about to fall as well (See: Greigo v. Oliver).

I'm not going to argue politics in this spot, but it is very clear to me that the movement is towards marriage equality (as well it should be) throughout the country, which in turn creates new situations for divorce attorneys to deal with. As someone who has handled same sex couple divorces in Massachusetts a number of times I can attest that divorce, regardless of sexual orientation is never easy and is as emotional and difficult for same sex couples as it is for opposite sex couples.

UPDATE (12:43 PM): Pennsylvania doesn't want you to forget about their involvement in this discussion. Federal Judge Jones III has fast tracked the challenge to Pennsylvania's ban on same sex marriage implementing an expedited briefing schedule.This is the case where Gov. Corbett defended the law saying it wasn't discriminatory because ANY woman was free to marry ANY man.

A Lesson for Lawyers: Time Stamping

I've been away from the blog for a little while, a fact that I hope to rectify in the coming days, weeks and months. However, one of the reasons that I had been absent is that I was working on an appellate brief from a Worcester Housing Court decision. I bring that up only to use this as a teachable moment on the subject of time stamping.

When I completed my work on the appellate brief and was prepared to have the materials delivered to the Appeals Court for filing, I asked our first year associate/courier in this instance to bring a second copy of the cover letter and receive a time stamp upon delivery, and ask for the name of the person accepting service. This is a typical task that I ask anyone who delivers something for me to Court to complete and is harmless to those on the receiving end.

Here is the lesson -- after about 35 days passed I received notification from the Appeals Court that pursuant to Rule 17A(1) my appeal was being dismissed for failure to prosecute (i.e., I didn't turn in my brief). Luckily for me I was able to pull the time stamped (with name) copy of a cover letter from the file, called the Appeals Court and cleared up the confusion. It was a simple fix to a problem that sometimes happens with a busy clerk's office, but a significantly important lesson for all lawyers - it takes about thirty seconds to get a time stamp, and you may just be saving yourself from a huge problem (including a potential malpractice claim).

Handy Tool for Massachusetts Parenting Time Records

I am often asked by clients what type of record keeping they should be doing when going through difficult child custody or visitation matters. Many people keep no records, which can create difficulties when you're trying to discuss the extent of parenting time and involvement in a child's life. Some client's keep less detailed calendar's which denote dates of visitation and (sometimes) length, but rarely include the true meat and potatoes of the visit or more specifically, what did you do?

What I have included after the break if a handy form for you to use to keep track completely of your parenting time with your child or children. The sample that I have placed below the break contains a watermark with my contact information. If this is a form that you are interested in utilizing please feel free to contact me.

Distributing Marital Assets in a Massachusetts Divorce

The division of marital assets in Massachusetts divorce cases is controlled by M.G.L. c. 208 s. 34. Often the division of the assets in a marriage is at the forefront of a client's mind, and they want to know what the Court takes into consideration when making such a division. The following information are the criteria to be taken into account by the Probate and Family Courts of the Commonwealth in determining what is a fair and equitable distribution of the marital estate.

1.  Length of marriage
2.  Conduct of the respective parties during the marriage.
3.  Ages of the respective parties.
4.  Health of the respective parties.
5.  Station of the respective parties.
6.  Occupations of the respective parties.
7.  Amount and sources of income of the respective parties.
8.  Vocational skills of the respective parties.
9.  Employability of the respective parties.
10.  Estates of the respective parties.
11.  Liabilities of the respective parties.
12.  Needs of the respective parties.
13.  Current needs of the minor children of the marriage.
14.  Future needs of the minor children of the marriage.
15.  Opportunities available to the respective parties for future acquisition of capital.
16.  Opportunities available to the respective parties for future acquisition of income.
17.  Contributions of the respective parties in the acquisition, preservation or appreciation in value of their    estates.
18.  Contributions of Husband and Wife as homemaker.
19.  Present and future needs of the dependent children.

Some Advice For New Law School Graduates

So you just completed your 3L year and you're starring down the barrel of bar exam prep and two days of nightmarish horror that you will share with 3,000 of your closest friends/complete strangers bent over bubble sheets and blue essay notebooks -- well you're in luck soldier, because as someone who walked the same path that you now stand before I'm here to provide you with some guidance and words of wisdom as it relates to the next two and a half months of your life.

I should preface this by saying that though the next two and a half months seems daunting, much like a roller coaster that frightens you while in line, the moment it's all over you're going to stand on the other side and wonder what you were so nervous about in the first place. I should mention that I'm talking to the recent grads who are taking the bar exam prep courses and doing everything they can to ensure they're as prepared as possible for the exam -- for those of you will be "winging it" you can skip this part because you'll be back in February (and you'll need to know Civil Procedure, so good luck pal).

One thing you should know is that every piece of information that you're going to be asked to know on the bar exam is something that you already know. The past three years of law school has done nothing to prepare you to be a practicing lawyer - the only thing your law school has been doing while you racked up $100,000+ in student loan debt is preparing you to pass the bar exam. Nobody reads the law school brochure that talks about average student loan debt of the graduating class, everyone looks at bar passage rates -- understand where the focus is. Law school is essentially high school, just replace the MCAS testing with the bar exam as the test you're being taught.

The bar exam is an endurance test with obstacles. It's the Spartan race of post-secondary education licensing exams. It's not that difficult to pick out the correct torts answer in a multiple choice exam, you're a law school graduate I have to assume you're capable of filling in bubbles with a No. 2 pencil. The difficulty comes when you're trying to do that in the World Trade Center in Boston while 3,000 other mouth breathers are having a nervous breakdown because they can't remember what riparian water rights are or whether G.L. c. 93A s. 11 deals with corporations or individuals.

You need to be able to relax. This is the key.

The night before I took the bar exam I watched Wedding Crashers with my friend Travis and we walked to the exam in the morning. The only mistake I made was that I had two 5-hour energy drinks during that walk. Here's a tip, if you're goal is to stay relaxed it'd be advisable not to orally mainline the equivalent of pure Colombian cocaine via grape flavored energy drink.

You're about to embark on two months of study prep. You're most likely going to spend the summer inside an undergraduate college lecture hall taking sample exams and going over the last five years of bar exam questions so that you'll know every single trick in the book. I say this only so that you understand that you're not going to learn anything the night before the exam. Trust me, if you don't know it at dinner time the night before the exam, there is no helping you. All you're going to do by studying the night before the exam is increase your stress level, cause panic and lose focus. These are bad things -- if you listen to only one thing I tell you, let it be this -- close the book before dinner, turn on a baseball game, relax, take some deep breaths (please, please, please don't drink any alcohol, against February means Civil Procedure, this is a bad thing) and try to get a good nights sleep.

Again -- this is an endurance test, if you're tired or stressed, you're in trouble.

Finally, during your exam prep period you'll be told a number of times that when you close the book on the first day that you should put it behind you and not talk about the test with anyone else. This is impossible. You won't be able to do it after the second day either (when you'll embark on the bender to end all benders), but here's the catch -- nobody knows anything. Most of you won't even be able to remember the questions, so you'll be talking about what you thought, about a question that you probably didn't even have. Someone will tell you that they know they passed, someone will tell you that they know they failed, and one of those two people may actually be right -- don't lose any sleep over trying to figure out which one.

And ultimately when it's all over and you're panicked because someone is talking about an intentional infliction of emotional distress essay question and you never even saw a tort in that particular question that the worst case scenario is you failed the test and you can take it again in February, the best case scenario is that you passed the test and you're now going to have to find a job in an over saturated job market that simply doesn't have any room for you. Either way you're going to be applying at Starbucks by Thanksgiving so in the end does it really matter enough to get worked up over it?

The practice of positive affirmations is one that I employ on a regular basis. When you start to slow down and you feel that panic grip you, just think of this picture and visualize yourself being sworn in at the end of November.

If Your Defense Counsel Does This...Maybe Find a New Lawyer

I don't know Philadelphia lawyer B. David Marcial but I imagine he's not thrilled with the reason that I know who he is today. Apparently, Attorney Marcial and his client showed up 50 minutes late for jury selection on a drug case on Monday (May 6, 2013) in Berks County, Pennsylvania. In response to Attorney Marcial's tardiness, Justice Stephen B. Lieberman ordered both men held in the courthouse cell block.

"We were all here at 9 a.m. for a jury trial and the defense table was empty," said the judge, who had dismissed the prospects not long before the two arrived. "We wasted a jury panel."

Four hours later, Lieberman had both brought before him for a hearing. Marcial, who must also pay a $1,000 fine within 60 days or serve 10 days in prison, explained that personal problems kept him up late and then a receptionist at a local hotel failed to give him a wake-up call, the newspaper recounts. He left the courthouse after the hearing but Ortiz was transported to the county jail.

I do very little criminal defense work, typically I will only represent a client in a criminal case if I have a prior relationship with said client. However, one thing that I always stress to my clients, my co-workers, my subordinates and a quality that I value in myself, is timeliness. Vince Lombardi is famously quoted as saying that being 15 minutes early is 15 minutes late. That is a motto that I attempt to adhere to. It's not often that I am late for the call of a list -- and if I am going to be late, I always make sure that I've contacted the clerk's office or the judge's clerk to make sure everyone is aware of my situation.

The fact that Attorney Marcial and his drug client showed up almost an hour late and the best excuse that Marcial came up with was essentially "I overslept" is baffling to me. There is a part of this story that isn't being told, mainly why both Marcial and his client were apparently separately 50 minutes late, though I guess it is possible that they were going to appear before the Court together, the fact that both of them were held on bail, and that Attorney Marcial now faces actual jail time for his contempt of court is telling.

Now, obviously I do not know what type of personal problems Attorney Marcial is going through, and honestly I have the utmost sympathy for him and his situation -- no matter what the truth is, this is a tough situation. But, the first thing that your taught in law school is that tardiness will not be tolerated. I was told on more than one occasion that if you showed up for a final 1 minute late you would not be able to take the exam As an attorney, your reputation is your marketing tool -- and unfortunately for Attorney Marcial, his reputation will suffer because of whatever happened on Monday morning.

Child Support Modification After Morales

On March 12, 2013 the Supreme Judicial Court of Massachusetts issued a decision in Morales v. Morales which clarified the nature of child support modification in the Commonwealth. In Morales, the lower court (in this case the Worcester Probate & Family Court) denied a Complaint for Modification, finding that there was no "material and substantial change in circumstance and no modification was warranted."

The SJC, in overturning the lower court decision found that the "no material change in circumstance" finding was not warranted as G.L. c. 208 § 28 merely sets out that "if there is an inconsistency between the amount of the existing order and the amount that would result from application of the child support guidelines" a modification is warranted. This standard, typically referred to as the inconsistency standard, stands in place of the material change in circumstance standard and permits a modification, if and when, there is an inconsistency in the amount of support to be paid -- regardless of the amount of time that has passed since the entry of the order.

The timeliness argument and finding is interesting. Under the Child Support Guidelines as they are promulgated in the Commonwealth "any child support order less than three years old may be modified only if there has been either (1) a change in health insurance coverage, or (2) a material change in circumstances." In Morales, the lower court found no change in health insurance, and no material change in circumstances in a child support order that was less than three years old --- and yet the SJC overturned the decision because of the inconsistency.

So, how did the SJC rectify the seeming incongruous Child Support Guidelines and G.L. c. 208 § 28? Judge Botsford, writing for the Court specified that the Child Support Guidelines were promulgated pursuant to Federal law, specifically the Family Support Act of 1988. Following the passage of the Family Support Act of 1988, the Commonwealth passed G.L. c. 208 § 28 "to provide that child support modifications would thereafter be governed by the inconsistency standard." The Court found that though "there have been subsequent amendments to Title IV-D that reflect yet additional changes to the Federal legal standard applicable to support order modifications, the inconsistency standard in § 28 has not been amended to take these Federal statutory amendments into account. Accordingly, we are bound to apply the provisions of § 28 as written."

What does this mean for you?

Well, if you are currently paying or receiving child support and you believe that there is a difference between the amount you are paying or receiving and the amount that you should be paying or receiving then you should be prepared to file a Complaint for Modification, even if every other fact applicable to your case is precisely the same as it was when the previous order was put into place. 

Modification is often difficult and is almost always highly contentious, as a Family Law attorney I would always recommend hiring a Family law attorney to help you address your Modification concerns and presenting your case. If you would like to speak to me about possibly filing a Modification my contact information is included in the bar at the righthand side of this page, please feel free to contact me at any time.

A Logical Change to the Bar Exam

Hat tip to Above the Law, and the WSJ Law Blog for talking about this but a letter from the National Conference of Bar Examiners has announced a significant change to the bar exam, the first change in nearly 35 years.



If you're a 3L right now and planning on taking the bar exam this year - then don't worry about this change. If you're not about to take the exam then get your Kaplan test preparations in order because starting in 2015 you're going to need to know civil procedure for the exam.

I think this is an obvious addition to the exam. The currently tested sections, Con Law, Contracts, Crim Law and Procedure, Evidence, Real Property and Torts are all important but honestly now that I'm out in the real world practicing law, the Rules of Civil Procedure are far more important to the everyday practice of law than the rules of Real Property. I have to echo the sentiment of ATL that it's far more important to understand what FRCP Rule 11 does than the difference between a covenant and an easement.

Civ. Pro isn't the "sexiest" subject in law school though I was fortunate to have a great professor at Suffolk who made the topic palatable, it is one of the more important aspects of the practice of law, and if you're unable to get a basic grasp of the subject matter for the bar exam, then you're going to be in trouble when you get into practice.

How Parental Alienation Syndrome Brainwashes the Child

This is a video that was created by Les Linet, M.D. from Princeton, NJ and I thought it did a good job of describing things that I see when dealing with cases in parental alienation. I would only preface this video by saying that in my experience the alienating parent can be either the Mother or Father. This video uses examples that rely on the Mother being the alienating parent, and by posting this video I do not wish to suggest that only Mother's alienate their children. I have been involved in cases where Father's have attempted to alienate their children from the children's Mother as well.

Checklist of Financial Documents for Divorce

One thing that remains true for (almost) all of my Massachusetts divorce clients is that they prefer when I give them the option to retrieve documents as I prepare their case file. When you, as the client, obtain documents to assist your divorce attorney in preparing your file it saves time and money. By avoiding the need of having your divorce attorney send out deposition subpoena's and other discovery requests for items that you, as the client and subject individual could more easily obtain, you will save yourself some billable hours in the long run. Of course there will be times when the documents you provide to your divorce attorney are not sufficient should your case proceed to trial, but evidentiary issues aside, most of my clients ask "what can I get for you?" at one time or another.

After the break I have included a lengthy checklist of documents that I frequently ask for as financial disclosures. If you're preparing, or going through, a divorce in the Commonwealth of Massachusetts these are typically the documents that your divorce attorney is going to be most interested in. This is by no means an exhaustive list, and for the most part I use this list internally only, which means that much of it won't apply. However, in an effort to get as much information "out there" as possible, after the jump you will find my checklist for financial disclosures.

Please Don't Put That on Facebook

From the bench one afternoon I heard a Worcester Probate Court Judge ask a pro se defendant "what do you think is on my Facebook?" The litigant hemmed and hawed until the Judge answered the question "Nothing, because I don't have a Facebook page."

This remark wasn't made merely to lighten the mood during an otherwise contentious custody battle between two pro se litigants. The Court had just finished hearing about how the defendant posted pictures on Facebook of drinking, drug use and partying. There were Facebook status updates that said "I apologize to my liver in advance" and "I shouldn't be driving #drunk." When these were posted by the defendant there was never a thought that these things would come up in a Court proceeding, which is precisely the problem.

People do not think when they post things on Facebook. 

I can tell you that the first thing I do when I've been retained is check the Facebook page of the opposing party. It's a quick, easy and simple way to learn about the other side. If I see pictures of drugs, drinking or other "high risk" behaviors, I make mental notes or better yet I print the offending pages.

You wouldn't believe the things that I've caught people in through their Facebook pages. Here's an example.

John Doe (client) is the father/custodial parent, Jane Doe (opposing party) gave up custody voluntarily two years prior and moved to State X with her boyfriend. Over the course of two years, Jane has no physical contact with the child, and only minimal text message/telephone contact with a then 3 - 5 year old (how effective is text messaging a 4 year old? You tell me). Jane comes to Massachusetts where John and the child reside for a wedding. Jane does not tell John she is in town and does not try to arrange for visitation. During her stay in Massachusetts, Jane is tipped off to a Court Notice in the newspaper that John was charged with A&B on her girlfriend. Jane runs to Court and files Emergency Motion to change custody due to the pending A&B charge.

Now, John comes to me. I jump on Jane's Facebook account and notice that prior to filing the lawsuit Jane has told her friend in State X that she is currently in Massachusetts for a wedding but will be back in State X in a few weeks. At the hearing on her emergency motion Jane tells the Court that she resides in Massachusetts and is capable of caring for the child. Busted. I pull out the Facebook page, and the story about being a Massachusetts resident falls apart. The Court denies the Motion and we proceed with a regular Complaint for Modification (wherein John retains full custody and Jane disappears).

Now, what's the point of that story? Had Jane not posted on her Facebook that she was returning to State X shortly, I would not have had that information prepared so that I could raise the issue to the Court that our concern was of Jane getting temporary custody of the child and disappearing back to State X. Unwittingly Jane provided me with our case. 

I've got a number of stories like these. I've seen an opposing party who was prohibited from bringing a child around her ex-boyfriend (and drug dealer) post pictures on her Facebook over the weekend of the drug dealing boyfriend swimming in a hotel pool with the child. 

Here's the lesson -- if you're going to have a Facebook profile, make it private. If I can sign on Facebook right now and pull up your entire wall, and photo collection there is a problem (for you). But also, if you're thinking about posting those pictures of you smoking weed with your college roommate during Alumni Weekend maybe you shouldn't do that, maybe it's not a good idea to let the world know on your Facebook page that you drove home "so wasted" last night, or that you're "really hungover" today when you're having visitation with your kids.

Facebook is a nice tool, and I appreciate the significance of social media but please, please, please, do NOT post that on Facebook.