How to Prevent a Halloween Horror Show: Stopping Parenting Disputes Before They Arise

Halloween is just a couple days away and the advertisements from Party City and displays in Wal-Mart and Target have been in full swing. For some parents it may be easy to figure out who will take the child Trick-or-Treating, but all too often that is not the case.  If you are encountering difficulty deciding where (or whether) your child will go Trick-or-Treating because of the other parent’s behavior, you’re not alone.  Halloween is one of the biggest holidays for children, and as a result can become a battlefield for parents post-divorce or post-separation.  Take comfort in knowing that there are a number of ways to resolve a dispute, or potential disputes, without setting foot in a courtroom.

Check your Separation Agreement – Plan ahead by re-reading your separation agreement or judgment to see what it says about sharing holidays.  Children need to be prepared by knowing where they are going as well.  Having this information can be invaluable when managing expectation and can prevent a Halloween Eve horror show.

Multiple Trick-or-Treat Outings – It is not unheard of for kids of divorced or separated parents to have more than one Trick-or-Treat adventure. Trunk-or-Treat has become a popular alternative to Trick-or-Treating and is usually arranged at school. “Safe” Trick-or-Treating at local shopping centers and malls are offered in many communities as well.  Another possible option could be alternating years sharing the official “Halloween” holiday.  If that is acceptable,  the parent in the off-year can avail him or herself of one of these other kinds of Trick-or-Treat events.

Alternate Holidays or Vacation Dates – If one parent does not celebrate Halloween because of religious reasons or places a higher priority on other yearly family holidays, an offer could be extended to switch parenting time or dates so that the child can enjoy the fun.  In contrast, if one parent places a lot of importance on spending time with the child on Halloween, concessions can always be made by bartering other vacation or holiday time.  This give-and-take can quickly resolve the issue without 3rd party involvement and keep unnecessary drama to a minimum.

Share the Holiday – Try to figure out a way to share the holiday, if at all possible.  Just because parents are separated, does not mean that this can’t be accomplished.  Both parties could participate in Trick-or-Treating for the sake of their child as it is for a relatively small amount of time, and is often done in groups with other families and children migrating from house to house.  The other parent on the receiving end is bound to appreciate the gratuitous gesture and may extend a courtesy in the future when least expected.

Regardless of the outcome or resolution, parents should know that a child’s well-being should be a priority and should always keep their best interests in mind when working with the other parent.

The Advantages of Collaborative vs. Litigated Divorce in Massachusetts

 

Considering a divorce can be daunting enough without having to decide which type of divorce you need to pursue.  The good news is that you have options and can choose a type that best suits your needs, individual set of circumstances, and legal interests. Two main types of divorce in Massachusetts are collaborative and litigated. Collaborative consists of a non-litigated, non-traditional approach, whereas a litigated divorce is more traditional and handled through the court system. Although the law is the same, collaborative divorce differs significantly from traditional divorce so it is important to understand the differences.  Choosing to handle your divorce in a collaborative manner can be a beneficial option for many reasons, including saving time, stress and money.  With this in mind, consider the following benefits of pursuing a collaborative approach to your divorce.

How Collaborative Divorces Are Handled

The greatest achievements come when people work together.

While a litigated divorce is usually combative in nature, a collaborative divorce encourages mutual agreements without the threat and pressure of litigation. A collaborative divorce is handled outside of the court system in an effort to satisfy both parties with an outcome that is satisfactory through mutual agreement. Collaborative attorneys are professionals who are specifically trained to assist couples in efficiently working through difficult yet necessary decision-making to arrive at resolutions that make sense for all involved.  Jointly retained experts will join the collective efforts and are hired to work for both parties to alleviate the “battle of experts” that a litigated divorce can create. Unlike a mediated divorce, a collaborative divorce provides each party with representation. However, all parties and their attorneys gather in an effort of creating solutions at private negotiation meetings.

 Benefits of a Collaborative Divorce in Massachusetts

The advantages of collaborative divorce can be substantial for clients. The court system in Massachusetts is under-funded and considerably backed up.  This is particularly true in Middlesex County.  Parties can wait weeks, and in some cases months, to get a court date.  The goals of conducting a collaborative divorce strive to keep parties out of court and to handle all negotiations privately in order to reach a mutual settlement without court involvement.

At its nature, a collaborative divorce seeks to find solutions to the complicated issues that can arise during a divorce while protecting the needs and wishes of both parties collectively. Removing the combative nature and “warfare” of a litigated divorce encourages parties to maintain amicable relationships, which can be especially important if children are involved. Attorneys can also conduct negotiation conversations without the presence of the parties and provide a summary of possible agreements, if desirable. Couples that own a business together may also reap the benefits of a collaborative approach because a variety of aspects can be agreed upon that affect a couple’s life during a divorce. A negotiated approach can also result in spending fewer resources and less time on achieving a divorce than one that is represented and litigated.

Many divorce attorneys, frustrated by the traditional representation system, have redefined their practice of law in favor of a collaborative approach. For divorcing couples who wish to dissolve their marriage using a less adversarial and more results-based approach, the collaborative method is an appealing alternative over a litigated divorce. The wealth of benefits a collaborative divorce offers, in terms of resources and time, will benefit divorcing couples by helping them maintain an amicable relationship during the divorce process and in years to come.

Coverture in the Commonwealth

Coverture is a method of equitable property division used by courts in Massachusetts. It is frequently employed to determine the value of non-vested marital property that is subject to division under M.G.L.A. c. 208, § 34. The coverture time period refers to the period of time during which the value of the non-vested property of one spouse is attributable to the marriage. It is typically used by courts and lawyers to determine the value of such non-vested property as pensions and employee stock options. Coverture has its roots in the colonial period of the United States, when married women and their husbands were considered a single entity for most legal purposes and women were not permitted to own or transfer property. Although the law has evolved significantly since the concept of coverture was conceived, the term as it exists today refers only to the fractional method by which courts determine the value of non-vested marital property.

Coverture, as it was applied in the 19^th century, was a defense that married women could raise to a number of legal actions against them. Since the common law held that married women could not own or transfer property, those who dared to contract with married women did so at their own peril. In 1865, a plaintiff suing a married woman for the enforcement of promissory notes made by her was defeated after she successfully raised the defense of coverture on appeal. Tracy v. Keith, 93 Mass. 214, (1865). Married women could even raise the defense of coverture against the Commonwealth in a criminal case. Com. v. Feeney, 95 Mass. 560, (1866). In modern times, coverture applies only in family law cases.

Modern family courts apply the legal concept of coverture where one spouse has been earning some type of non-vested property interest throughout the marriage and will likely receive the benefit post-divorce. The most common scenario is when one spouse is a pension holder and has been participating in the pension plan throughout the marriage and continues to participate in the plan after divorce. The non-pension holder spouse is entitled to a portion of the future pension payments in proportion to the amount of time he or she was married to the pension holder. The coverture period is determined by a fraction where the numerator represents the total period of time the pension holder participated in the plan during the marriage, and the denominator is the total period of time the pension holder participated in the plan. Dewan v. Dewan, 17 Mass. App. Ct. 97, 455 N.E.2d 1236, (1983). The determination whether to assign a percentage of present value as a property asset or to allocate benefits if and when received lies largely within the discretion of the judge. Dewan v. Dewan, 17 Mass. App. Ct. 97, 101–02, 455 N.E.2d 1236, 1240 (1983). In Dewan, the wife argued the judge was required to accept the actuary’s testimony as to the value of the pension rights and to allocate a portion of that value presently to the wife by way of equitable division. The court stated that assigning a present value is more desirable in shorter marriages as the pension has little present value due to “long deferred receipt and because the non-retiring spouse’s appropriate share of pension benefits when paid would be confined by the brevity of the marriage” Dewan v. Dewan, 17 Mass. App. Ct. 97, 102, 455 N.E.2d 1236, 1240 (1983). For longer marriages, where the age of retirement is closer, assigning a present value may not be feasible in the absence of other significant assets.

Massachusetts courts have applied a similar time-based method in determining the portion of stock options owned by a spouse that may be included in the marital property. Stock options, like pension plans, are non-vested property rights so the courts apply a fraction method in order to allocate the value of the stock options between spouses. “The number of unvested shares of stock options is multiplied by a fraction whose numerator represents the length of time that the employee owned the options prior to dissolution of the marriage (i.e., the length of time that the employee owned the options prior to and during the marriage), and whose denominator represents the time between the date the options were issued and the date on which they are scheduled to vest. The resulting product is the number of shares subject to division.” Baccanti v. Morton, 434 Mass. 787, 801, 752 N.E.2d 718, 730 (2001). The judge then applies the normal G.L. c. 208, § 34 factors to assign those shares subject to division. In this way, courts have applied the coverture theory to both retirement plans and employee stock options.

The early applications of coverture were based on the idea that women, because of their inherent inferiority, could not own property and thus the husband was required to be the sole provider. While the legal principal of coverture has evolved over the years, the duty of one spouse to provide for the other after separation remains. The extent of that duty regarding non-vested property rights is sometimes determined by the time-based method known as coverture.

Could My Jailbird Ex be Entitled to Alimony While in Prison?

This is a question that doesn’t often surface, but when it does is significant, to say the least.  One key function of the Probate and Family it to determine the proper amount of alimony that should be awarded to a dependent spouse in a divorce proceeding. While the judge follows the statutory guidelines set forth in M.G.L.A ch. 208, § 34 in calculating an alimony order, each case is different and presents unique challenges. One such challenge of divorce presents itself when the dependent spouse becomes incarcerated after the judgment of divorce that contains an alimony order has entered.  Although a dependent spouse sentenced to jail is still entitled to receive alimony payments pursuant to the domestic relations order, an argument could be made that the incarceration constitutes a material change in circumstances and the judgment for alimony should be terminated.

The focus of an award of alimony should be the spouse’s need for support and maintenance as it relates to the parties’ individual financial circumstances.   To be successful in an action to modify a judgment for alimony the petitioner must demonstrate a material change of circumstances since the entry of the earlier judgment. Schuler v. Schuler, 382 Mass. 366, 368, 416 N.E.2d 197, 200 (1981).   While the financial needs of the parties, along with a number of other factors, play a major role in determining the amount of alimony to be paid to the dependent spouse, it follows that when the needs of the dependent spouse have reasonably increased, the judgment for alimony may be modified accordingly to increase the amount of alimony to be paid in support of that spouse. The opposite is also true. The financial needs a dependent spouse who becomes incarcerated  will decrease significantly since the burden of support is absorbed by the state.   In addition, because the recipient spouse’s standard of living is determined entirely by the Department of Corrections and therefore no amount of payment to the incarcerated spouse can provide sufficient economic support to maintain the marital lifestyle.

As unpleasant as in might seem, an incarcerated ex-spouse could be entitled to receive alimony while in jail, or even to increase the amount of payments.  As a result of incarceration, the dependent spouse’s financial needs will likely increase and alimony payments may be ordered to continue accordingly. The court considers the following factors in determining alimony: the length of the marriage; age of the parties; health of the parties; income, employment and employability of both parties, including employability through reasonable diligence and additional training, if necessary; economic and non-economic contribution of both parties to the marriage; marital lifestyle; ability of each party to maintain the marital lifestyle; lost economic opportunity as a result of the marriage; and such other factors as the court considers relevant and material. M.G.L.A ch. 208, § 53.

When a dependent spouse has been incarcerated, future employability is almost always negatively impacted as a result of the criminal conviction.  Upon release a dependent spouse may struggle to find a job and may have community service and parole obligations to meet as well. A spouse is entitled to a fair and reasonable award considering his and her needs, his and her financial worth, their station in life, and his or her mode of living. Because an incarcerated spouse may not be able to secure gainful employment and maintain a lifestyle comparable to that of the marital lifestyle, the dependent spouse may need alimony even more than before the incarceration.   While the incarcerated dependent spouse may not be able to spend money received from alimony payments while in jail, the money may be transferred to the spouse’s bank account, to be used for shelter, food and other support purposes upon release from jail.

The question of whether an incarcerated spouse should receive alimony while in jail is an important one, but not often considered.  Many if not most people may consider an award of alimony to a newly released inmate unfair, and a payor spouse would likely argue that any hardship suffered by the dependent inmate was self imposed by their illegal conduct.   Nonetheless, a spouse being sentenced to jail is just one of the many possible situations in which a material change in circumstances may justify a modification of a judgment for alimony, and Massachusetts Family and Probate Court Judges have considerable discretion when making such orders.  Legal counsel should always be sought on a case by case basis.

Is Your Inheritance Up For Grabs in a Divorce?

In Massachusetts divorce cases, expected future property acquisitions in the form of inheritances or family trusts may be taken into consideration by the Court when dividing marital property.  The law has been very well settled that “Opportunities for future acquisition of capital assets and income” are one of the factors the Court should take into consideration as under M.G.L. Ch. 208, §34.

During the divorce process, each party seeks to obtain from the other evidence of financial assets so that the Court properly takes them into consideration when determining the division of marital property. A party in a divorce case will want evidence of the other parties future interests (i.e. money or property), which may take the form of future inheritances. The private nature of these possible future interests raise a problem for parties in a divorce which is not easily dealt with without use of a common discovery tool known as the “Vaughan Affidavit.”

In order to establish a balance between the privacy interest of third parties and the right of a divorcing spouse to the full disclosure of marital assets, in 1991 the Court in Vaughn v. Vaughn held that third parties have legitimate privacy interests that need to be protected while acknowledging that the Court may properly take a party’s expectancy interests into consideration when determining what disposition to make of the marital property that is subject to division. The result was the so-called Vaughan affidavit.

The Vaughan affidavit is a document supplied by the third party (usually the parents or grandparents of a divorcing spouse) in a divorce proceeding, that provides limited disclosure of the individuals financial assets, net worth, and a general description of their estate plan. The affidavit is supplied in lieu of deposing the third party.  If the third parties reside in Massachusetts, they will in all likelihood confer with their own counsel once they receive the subpoena to get legal advice.  Upon doing so, they will understand that they may choose to either produce the documents and/or appear for the deposition, or execute the Vaughan affidavit.  When presented with these options, they will almost always choose the latter, less intrusive alternative.

The Vaughan affidavit is an important tool for lawyers practicing family law, but judges are entitled to a substantial amount of discretion when taking it into consideration. Parties in a divorce action have a right to know about substantial expectancy interests of the opposing party but the Court is mindful that a person could be dis-inherited or divested of any such interests at the sole discretion of a third party.  Nonetheless, the importance of obtaining a Vaughan affidavit in a divorce action cannot be overstated where one party suspects the other of having a substantial inheritance coming their way. Taking a future interest into consideration can make a significant difference when calculating divisible marital assets and should not be overlooked.

 

The Consequences of Lying to Your Lawyer

Lying is never a good idea, but the last person you should lie to is your lawyer. No matter what the rationale may be, honesty is always the best policy when it comes to dealing with an attorney who you’ve either consulted with or retained to represent you.

Not being truthful with your lawyer may not just cost you some embarrassment, it could cost you the outcome of your lawsuit. 

Client Confidentiality – A Relationship Predicated on Trust

One of the founding principles of the American legal system is confidentiality in the communications between a lawyer and his or her client. The attorney-client privilege protects confidential communications between a client or prospective client and an attorney made for the primary purpose of obtaining legal advice or assistance. Except in a few limited circumstances, the attorney cannot reveal these confidential communications to a third party or in the course of any legal proceeding. This principle of confidentiality is based on the idea that an attorney needs to know all the facts of a client’s case, favorable and unfavorable, in order to effectively advocate for the client and achieve his or her goals. With this principle in mind, lawyers strongly encourage their clients to be candid with them about the details of their case, no matter how embarrassing or unpleasant.  In fact, if a client is not truthful with their advocate, it can be grounds for an attorney to withdraw from representation of that person altogether.  Nevertheless,   some clients misrepresent or omit important facts and details they feel might hurt their case despite warnings not to do so. Because all communications between the client and the attorney regarding the client’s case are held in confidence,  lying will not only reduce the odds of achieving the client’s goals and adversely affect the client’s case, but will cause the attorney to have strong misgivings about the client.

Judges Judge – The Attorney Advocates and Defends

An attorney’s job is to advocate and defend, not judge.  When people seek legal assistance, especially for family law matters such as divorce, the attorney must many personal questions during the intake process. Clients are sometimes reluctant to disclose facts they view as unfavorable out of fear that the lawyer may judge them for their actions and not accept them as a client. They may also withhold certain unpleasant details that they believe the lawyer doesn’t need to know or they think are irrelevant to the case.  Be mindful that lawyers handle cases involving indiscretions such as adultery, drug use, abuse, and other offensive activity on a regular basis and there is unlikely anything that will shock an experienced lawyer. Most attorneys are compassionate and will empathize with a sensitive and difficult situation. It is never an attorney’s intention to embarrass or make a person uncomfortable, but in order to do his or her job, an attorney know all of the adverse facts in order to effectively strategize and plan.  In fact, an experienced lawyer may know how to put a positive spin on even the worst possible set of circumstances.  It is always better to err on the side of caution, and be completely forthcoming with an attorney, so that they can effectively advocate for the client.

The Adverse Effects – Irreparable Damage

Clients who lie to their lawyers are subjecting themselves to a lose-lose scenario. The truth almost always has a way of coming out – in one form or another.  If adverse facts aren’t revealed up front and dealt with, it is likely that they will surface at a later stage of litigation and be used against the client by the opposing party.  In many cases, it can have devastating consequences for both the client and the lawyer.  The worst case scenario for the client is when a lie is exposed during the client’s testimony while under oath.  More likely than not, it will come out under cross-examination while credibility is under attack.

Attorneys also may also undergo scrutiny when clients are not truthful and sustain damage to their reputations.  Attorneys are officers of the court and subscribe to the Rules of Professional Conduct which prohibit them from assisting client in perpetuating a fraud (making misrepresentations) to the Court.  If a client is caught in a lie, it may also call the actions of the lawyer into question, and may cause the attorney to appear in a bad light before the Court.  If this happens, an attorney may seek to withdraw from the case in order to protect his or her reputation.

It is clear that clients gain nothing by lying to their lawyers. The best thing clients can do for themselves is be forthcoming in all their communications with their attorney and avoid the chances of an unfavorable outcome.  Because private conversations with attorneys are almost always treated as confidential, it is better to talk about unpleasant facts early with them early on rather than to be caught off guard later. Candor isn’t just important; it is the cornerstone of the attorney-client relationship.  Without mutual trust between the lawyer and client, both are at a disadvantage.

 

Taxes & Divorce: What You Need to Know

Taxes are unavoidable. As Benjamin Franklin candidly put it “In this world nothing can be said to be certain, except death and taxes.”  For some, divorce may be just as inevitable, but it can also bring a host of complications to tax filing. The following are a few issues that should be taken under consideration as the final month of tax season approaches if you are involved in a divorce this time of year.

1. Determine Your Filing Status  A person’s status at the end of the year determines how they will file their tax return, however, absent an order of the court, there is no obligation to file jointly with a soon to be ex-spouse if you find yourself caught up the middle of a divorce.  Married filing separately is almost always an option, but may result in a higher tax liability.  If your ex-spouse has concealed income in previous years, it may make sense to file separately if the divorce is contentious and is not likely to settle.  It is also important to be mindful that if there is a liability or refund, there may be duties or obligations associated with how it is divided at the end of the divorce process.

If a divorce is final by December 31 of the tax year, a tax payer will file separately from the former spouse for that tax year. Likewise, the custodial parent of the children may qualify for the favorable head of household status. If not, then single will be the default filing status, even if married for part of the tax year.

2. Consider the Tax Implications of Support Child support is not deductible to the person who pays it, but alimony is. Likewise, child support isn’t reported as income, but the recipient of alimony must claim it his or her tax return.  The court however has the power, and parties can agree to designate support as “unallocated” or “family support” so that the tax treatment can be modified to accommodate the need(s) of the parties.  This support structure allows spouses to take support payments that are typically not tax deductible and allows the payer to deduct the payments from his or her income taxes.

While alimony has always been treated this way, child support is usually not tax deductible. Unallocated support allows a taxpayer to merge child support and alimony together so that the payment of both becomes a tax deduction to the payer, and taxable income to the recipient.

3. Review Your Divorce Decree to See Who Will Claim the Children as Exemptions           A properly drafted divorce agreement will contain provisions regarding the right to take the children as tax exemptions.  If the agreement is silent then the right to take the exemption will go to the custodial parent. If the custody arrangement is joint,  the exemption will go to the party who has the child the greatest number of days during the tax year.  More often than not, a divorcing couple will alternate years or use some other method to equitably share the minor children as tax exemptions, but the terms of the separation agreement will always control.

4.  IRS Form 8332 – Don’t Overlook It  If the non-custodial parent has the right to claim the child(ren) as a tax exemption,  the IRS Form 8332 (Release of Claim to Exemption for Child of Divorced or Separated Parents) should be signed by the custodial parent. A copy of this form ought to be filed with the income tax return in order to claim the tax exemptions for children who do not live the non-custodial parent.  As a practical matter, this form is frequently neglected at tax time but care should be taken to make sure it is not disregarded.

5. File First if Exemptions are an Issue It is not uncommon for an argument about tax exemptions to surface before tax time even arrives.  The custodial parent will always have an edge if they are able to file first since the IRS will make the non-custodial parent prove that he or she was entitled to the take the exemption.

6.  Itemize your Statement of Legal Fees Paid During your Divorce Although the IRS prohibits any deduction for the cost of personal advice, counseling and legal action in a divorce, fees paid for tax advice about the consequences of your divorce may be taken as an itemized deduction on Schedule A on the line “other expenses”.  Likewise, legal fees incurred to obtain alimony support order can be claimed as well.  Carefully review the bill from your lawyer to see what, if anything, can be deducted.

7. Consider  Changing Your Withholding on Form W-4 or Making Estimated Tax Payments Divorce can affect a tax situation dramatically and have consequences that carry over into future years despite even the best tax advice.  If there is going to be a tax liability for the foreseeable future, it may be wise to claim one additional exemption for approximately every $3,600 of deductions, including alimony payments. In the case of an alimony recipient, consider requesting extra tax withholding in order to cover any new tax liability. If withholding won’t be enough to cover make up the difference, set up quarterly estimated tax payments to avoid owing taxes and penalties at the end of the coming year.

 

How to Take the Fight out of Divorce

Inability to effectively communicate and negative emotions can prevent resolution of minor issues between divorcing spouses.

When facing divorce, the last thing any family needs is arguing and confrontation.  Just because two people fall out of love,  doesn’t mean they should try to hurt one another emotionally and financially. Divorces can be overwhelming, and are the cause of significant fear and anxiety for a lot of people.  What many people don’t realize is that “this doesn’t have to be the case.”  The best outcomes in divorce situations is when both parties put their personal feelings aside and view it as a business negotiation.  In fact,  data from the Project on Negotiation at Harvard Law School substantiates this position concluding that “good decisions are not made when there are negative emotions or fear.’

Many people have heard the term “mediation” and may loosely understand what it means, but don’t have a firm handle on what it can do for them in the context of divorce situation.  In Mediation, both  spouses come together,  for a few sessions, and use interest based negotiations to help them reach agreements on child custody, support and division of assets. After the agreement is reached, the mediator will typically draft a separation agreement. The mediator does not represent either party, and does not give legal advice. The function of the mediator is to assist parties in communicating, and to help them in forming their own resolutions to the issues that they have difficulty with.  Mediation can preserve a family’s financial resources, and may accomplish the divorce process in  less time and with less stress.

It is important to remember that not all divorcing spouses are going to be candidates for mediation.  If one person is using the mediation process in order to “strong arm” the  less-aggressive spouse into complying with his or her wants or wishes, this will be a waste of time.  Most mediators can see right through this and will end the sessions  if it becomes unproductive.  There are also no guarantees that a mediation can fast-track a divorce.  If the process breaks down at any point,  people may find themselves quickly lawyering up.

If a mediation breaks down, it doesn’t necessarily mean a divorce is headed straight to trial.  In Massachusetts, (and in a majority of states) most divorces have great potential to settle out of court simply because litigation is expensive and trials can be very time consuming and unpleasant.  In Massachusetts, several of the county bar associations offer conciliation programs which have assisted the courts greatly in resolving contentious cases that would otherwise go to trial.  These programs are staffed by volunteer family law attorneys who are trained and experienced.  They also function as third-party neutrals, so the process tends to move much faster and is more directed than a mediation. A conciliator can make helpful suggestions on how to resolve a case and may also write a report to the court on what options were discussed as part of the process.  Sometimes a session is broken down by dividing up into small groups so that each party feels as though they can speak freely if a case is especially contentious.  The success rate of conciliation is remarkable in Massachusetts.  Roughly 70% of the cases that are referred by the family court for conciliation are resolved and reported as settled.

Managing conflict is never easy, but it doesn’t have to be impossible.  A good mediator is open and understanding about different ideas, perspectives and experiences and has creative solutions that take each of them into consideration.  Taking the fight out of divorce spares couples time, money and anguish and is well worth the investment.

 

Massachusetts Restraining Orders and Harassment Protection Orders – What You Need to Know

A restraining order under M.G.L. 209A is a civil order issued by the court that prohibits a person from being within a set proximity or making contact with the person who filed the restraining order.  A harassment prevention order under M.G.L. 258E  also provides these same protections from harassment and abuse.  This following is a list of a few tips that will help prepare you for what you can expect when you are at these types of hearings.

1. Be Able to Clearly Identify an Imminent Threat of Harm

When you request a restraining order, you are asking the judge to restrict another person’s freedom, which is not something the court takes lightly. Remember that the law does give the judge the authority to restrict someone’s freedom only when there is violence or harm, or the imminent threat of violence or harm.  The law does not give a  judge the authority to restrict someone’s freedom because that person lies, swears, drinks, squanders money, etc.  Even if the other person’s bad behavior may be a big part of the abuse, it is not likely to be a basis for a judge to grant a restraining order unless you can show it caused you to be reasonably fearful for your personal safety.  Focus on the acts of violence which gave rise to your request for the restraining order you are seeking and the court will be more likely to grant your request.

2. Give careful thought to your restraining order statement before you write it down

The sworn statement (also called a supporting affidavit) you write in your application for a restraining order is a summary of your case against your abuser and should be well thought out. It is an official declaration to the court that is made under the pains and penalties of perjury, and should concisely set forth each and every act that caused you fear.  The supporting affidavit is a permanent part of the court record, and it is important to remember that it may be brought into any future court proceedings, either to support your case, or to be used against you.   If the affidavit is weak or poorly written, it will be easier to attack the request for the restraining order and discredit you.  Also keep in mind that if the history of abuse is very lengthy and complex, you do not have to cover every single event that transpired in the supporting affidavit.  Like most things, less is more when you are presenting to the court. However, special care should be taken to make sure that critical points do not get left out and the timeline of events is clear.  If material issues are left out, or the summary of your allegations veers off into irrelevant matters, you may confuse the court and make it difficult to raise important matters later in the case.

3. Track down your witnesses

A temporary restraining order (TRO) is normally issued on an emergency basis with the court relying on the alleged facts contained only in the supporting affidavit.  If a TRO is granted, the court will schedule the matter for hearing within 10 days so that the defendant can be present and give his or her side of the story.   A restraining order hearing works like any other trial, and the testimony is subject to the rules of evidence.   If you have witnesses who can verify your accusations, it adds tremendous credibility to your case.   If your witnesses are not willing to testify at the hearing,  ask them to write a witness statement for you which you can present at the hearing.  Ideally, it should be signed by your witness under the pains and penalties of perjury and notarized.  The defendant will likely object to any signed statement, but it is well worth getting if your witness cannot appear for the hearing.

4. Control your emotions in front of the Judge

Dramatic displays of emotionalism at a restraining order hearing are never a good idea. When your case is called, there will likely be a substantial amount of people in the courtroom present waiting to be heard on other matters.  Although the judge will be concentrating on your testimony, you need to be mindful that there might be total strangers listening as well.  As nerve wracking as the situation may be for you, avoid telling long, dramatic stories. If you feel like seeing your abuser in court will make you upset, come prepared with a supportive friend or family member.  It is also a good idea to bring a few tissues with you so that you are not caught off guard if you feel like you might lament.  Resist the urge to panic, and stay calm by taking deep breaths, and focus on the judge and avoid looking at the defendant.  Respond directly to the question being asked, and keep your answers clear and concise.

Helpful Tips for Co-Parenting During the Holidays

Source: Helpful Tips for Co-Parenting During the Holidays