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.