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.

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.

 

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.

 

Joint Custody 101

In decades past gender roles played a stronger role in determination of physical custody of minor children in Massachusetts divorce. Within the past 15 years, the recent trend of the family court is to award joint physical custody because it can help the children maintain an equal bond with both parents in a post divorce situation. Whereas the mother had always been the primary caretaker of the children, and father the breadwinner, this is situation is no longer the “norm” as it once was in Massachusetts child custody cases. Household roles and responsibilities have been redistributed in as there are more families depending on the incomes of 2 parents, as opposed to 1 in recent times. There are drawbacks, naturally, but this has been the direction of Massachusetts Family Court rulings in recent years.

Massachusetts Joint Custody has progressively become more popular

One litigant inquired whether or not her job, which involved the sale of sexually photography of herself, would be a determining factor in her soon to be ex-husband obtaining a joint physical custody arrangement as opposed to her being awarded sole physical custody – even though she had been the primary care taker.

The Massachusetts Family Court is not altogether concerned about the explicit nature of peoples jobs, so long as the children were not exposed to it or harmed by it, and are not likely to be harmed by it in the future. There are many people who work as exotic dancers, for example, who are still caring and responsible parents. It may comes as a surprise that professions of this nature are not likely to have as much of an impact on whether or not you have joint physical custody as much as other factors, such as the proximity of where you both now live, and the other parties willingness and ability to participate actively in the children’s lives.

The Massachusetts divorce court is also mindful of the importance of routine and stability, and will try to maintain that for the children. If a party had never been involved due to his job and that it prevents him from performing day today parenting duties, that is a legitimate reason why joint physical custody in Massachusetts would not be practicable. Moreover, one could successfully argue that even if this were not the case, changing a prior established routine would unduly harm the children and may thwart an attempt of the other spouse to obtain an joint physical custody award in Massachusetts.

A Massachusetts divorce attorney at the Wright Family Law Group should be consulted to discuss the viability of any proposed joint physical custody arrangement in Massachusetts.  Call us today for your free, no obligation consultation.