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.