In a custody battle, can my child’s therapist testify?

Often, when parents are in the process of divorcing, their children need counseling. Therapy can be a valuable experience for a child, offering a safe environment for the child to voice fears, anxieties and anger, all without concern about the possibility of upsetting their parents. But what if the parents are unable to resolve a custody or other parenting issue? Can the children’s therapist testify in Court? In Massachusetts, there is a statutory patient/psychotherapist privilege that applies to children. That means that a therapist cannot disclose anything said by a child in therapy–with limited exceptions such as abuse and other criminal activity–unless the privilege has been waived. The fact that parents cannot waive that privilege for their children frequently comes as a surprise in divorce proceedings. Instead, the judge will appoint a special Guardian ad Litem purely for the purpose of determining whether to waive the privilege. Typically, but depending upon the child’s age, that person will speak with the parents and the child before making a determination as to whether waiving that privilege could be detrimental to the child.

Do you know how the new tax laws could affect your divorce?

At the end of last year, Congress adopted a number of changes to the tax code that impact people who are divorced. Chief among them are the following:

1. NEW alimony orders entered beginning on January 1, 2019 will be treated differently in that alimony payable under those order will NOT be deductible to the payor and taxable to the payee;
2. Beginning on January 1, 2018, the dependency exemption has been “suspended” long-term, meaning that regardless of the language contained in an agreement, neither parent can claim the child(ren) as a dependent(s);
3. For some parents, child credits remain available and may be negotiated.

However, alimony orders entered prior to January 1, 2019, remain deductible to the payor and taxable to the recipient.

As a result, the negotiation of alimony has become more complicated!

The Massachusetts alimony statute has not been modified to reflect this change in federal law, which means that how Probate and Family Courts will determine alimony in contested situations beginning on January 1 is virtually unknown. Whether you receive or pay alimony, or whether alimony is an issue to be addressed in the future, Attorney Sullivan can advise you about how these changes in federal law may affect you, and whether addressing these issues prior to January 1, at least relating to alimony, might benefit you.

Choosing Divorce Mediation

If you are considering divorce, you may be intrigued with the idea of mediation. For the right couple, mediation can certainly be an effective tool for reducing the acrimony—and cost—of a divorce. Whether that is true for you will depend upon a variety of factors, including the level of trust between you, the complexity of your issues, and the quality of your communication with each other.
Mediation is an unregulated profession, i.e., some mediators are attorneys, and some are well-trained, but some are neither. Choose a mediator with care, with attention not only to qualifications but also to temperament. Mediation, like divorce representation, involves a fair degree of discussion of intimate personal and financial details, and it is important that you are comfortable with the process and the person. If you choose mediation, you should still have individual legal advice, even if just to review the results of the mediation, because the mediator does not represent either person: his or her role is to assist the couple in coming to an agreement, not to assess whether that agreement is in either party’s best interest. Moreover, even an agreement accepted by both parties must be approved by the judge; an incomplete or otherwise inappropriate agreement can be rejected at the time of final hearing, which is a result that neither party desires. Any good mediator will advise participants to retain their own counsel, for that very reason.
Attorney Sullivan is available not only as a trained and experienced mediator, but also to advise you through mediation, to ensure that the mediated agreement is in your best interest, is drafted appropriately, and can be accepted by the Court.

Child Support Revisited

Massachusetts has just completed a periodic revision of the Child Support Guidelines, which occurs every four (4) years, and the changes will become effective on September 15, 2017. While some of the changes are minor, the most significant changes include the following:

1. Increasing the minimum support order to $25 per week. The minimum child support order typically applies in families with extremely low income, and previously was $80/month.

2. Removing the parenting time/child support calculation that was inserted into the 2013 guidelines. The 2013 guidelines had implemented three basic parenting arrangements for purposes of calculating child support: one parent having primary custody with about 2/3 of the children’s time, joint custody with each parent having about 50% of the children’s time, and one parent having primary custody with more than 2/3 of the children’s time. The latter category was eliminated, as the Court–and many attorneys–found that that provision was escalating litigation and causing some parents to vie for more of the parenting time in order to enhance his/her support obligations.

4. Including a capped adjustment in the child support calculation for child care and health care costs. This revisions appears intended to more equitably spread the cost of day care and health care costs between the parents.

5. Addressing child support for children between the ages of 18 and 23, resulting in a 25% reductio in child support for children in this age group.

6. Including provisions related to parental contribution to post-secondary educational expenses, essentially capping parents’ obligations at the cost of U.Mass. Amherst except where the Court enters a specific finding that private college is affordable or that the family has saved for that purpose.

Attorney Sullivan is available to meet with you to evaluate whether and to what extent these revisions could might impact on your circumstances.

Should I mediate my divorce?

Mediation is a popular process for resolving issues that arise in divorce. But is mediation the right choice for you? The reality is that mediation is not for everyone. It requires that both parties trust each other and be committed to fully disclosing all financial realities of their situation, i.e., income, expenses, assets and liabilities. If one party seeks to use the mediation process to dominate the other, or is has a history of either psychological or physical abuse, mediation is less likely to result in a successful resolution.
The job of a mediator is to assist the divorcing couple in coming to an agreement, but the mediator does not represent the interests of either party, which is why each person should have his or her own counsel to consult with during the process, and to review all documents. Lastly, if you and your spouse have few issues, or have essentially resolved your disputes, then you have less of a need for a mediator than for an attorney to draft documents reflecting your agreement, while also ensuring that you have appropriately addressed all relevant issues to your maximum benefit. Remember, though: no attorney can represent both of you.
Attorney Sullivan is a trained, experienced mediator who is also available to consult with you if you if you are working with another mediator. Please feel free to call the office to discuss the benefits and risks of mediation your circumstances.

After the divorce: how to pay for college

This time of year, high school seniors are graduating and planning for next year’s college attendance. High school juniors, too, are planning college visits and applications for the fall. College is expensive, and addressing the issues of how to divide educational expenses after divorce can be a real challenge. If you are in the midst of a divorce, you can be very specific in how you define the term “educational expenses,” and how you and your ex-spouse will determine your respective contributions. Many couples decide to cap their obligations, e.g., to the cost of a state university education. Addressing all of these issues early in the process, and realistically, can be the key to a smooth transition for your college-bound child. If educational expenses become contested, it is wise to leave plenty of time, at least several months and preferably more, for court documents to be filed and hearings to be scheduled.

I am getting married. Should we have a pre-marital agreement?

Pre-marital agreements, also called ante-nuptial agreements, are now widely recognized. Some guidelines should be followed when considering a pre-marital agreement, however.
1. Why do you (or does your prospective spouse) want a pre-marital agreement? Typical valid reasons are the acquisition of significant wealth prior to the marriage, whether through personal efforts or inheritance, and the existence of children born before the marriage. Each set of circumstances is different.
2. When is your wedding? It is best to negotiate and sign an agreement as long as possible prior to the wedding. As a marriage approaches, one or both members of the couple may feel pressure to sign an agreement that she or he does not really want to sign. Moreover, do you really want to be signing a pre-nuptial agreement as your wedding approaches? The answer, from an emotional standpoint, is almost always no!
3. What are the proposed terms of your agreement, and do they seem fair?
For optimum results, and the least amount of stress, you should consult with an attorney as far in advance as your wedding as possible, which will provide the opportunity to discuss all aspects of your circumstances. Attorney Sullivan has negotiated and drafted many pre-marital agreements, and she is prepared both to draft an agreement or, if your fiance(e) has already retained counsel to draft an agreement, to review that proposed document with you and propose revisions in your best interest.

Paying for college education

Every parent is concerned about how to pay for their children’s college education. This concern may be magnified when the parents are divorced or divorcing. In Massachusetts, the Probate and Family Court does have authority to determine what portion of a child’s education that each parent will pay. The approaches vary by judge, and, of course, by the parties’ circumstances. Some parents choose to limit their potential obligation to a particular dollar amount, or to the total cost of a state college; others, particularly if their children are young, may choose to defer the determination of their respective contributions until the children are older, because circumstances may change during the intervening years. Depending upon the number of children in a family, the children’s ages, and the financial circumstances, it may also be appropriate to adjust child support when a child enters college. Whatever your circumstances, whether you are in the midst of a divorce, or already divorced, Attorney Sullivan is prepared to guide you through the process of resolving college education expense issues in the best way possible for your family.

I live in Massachusetts, and my spouse lives in another state; does it matter where we file for divorce?

Often, both spouses still live in the same state, perhaps even the same home, when they decide to divorce. However, if a couple has separated, one spouse may have moved to another state. In that case, jurisdictional law will determine where a divorce can be granted. Divorce law varies from state to state, though, and each state has different rules that govern whether it has jurisdiction over a divorce. Typically, the rules focus on where each spouse lives, and for how long, but other relevant factors may be where they each lived when the marriage broke down, where the couple lived during their marriage, and how long each spouse has lived at his or her current residence. The rules are not always as obvious as they might seem. Moreover, state law about some aspects of divorce, such as alimony, child support, parenting time and the factors affecting asset division can vary significantly. For example, in Massachusetts, child support can extend until a child is 23 years old, so long as the child is attending school full-time, but in New Hampshire child support ends at age 18 or graduation from high school. Therefore, in circumstances where it might be possible for two different states to exert jurisdiction over a divorce, the decision of where and when to file may be crucial, and is an important matter to discuss with your attorney.

Holiday Parenting Time

Holidays can be very difficult and stressful for families dealing with divorce or separation, whether the case is in process or already completed. Every parent wants to spend time with his or children during significant holidays, and sharing that time can present difficult, emotional issues. No one wants to be a visiting parent. The children will benefit if parents have been able to agree upon a parenting arrangement for the holidays, which may entail compromise from both parents. Do both parents’ families celebrate the same holidays? Do the families live close to each other, or are they on opposite sides of the country? If there are no orders in place that ensure time to each parent has time with the children, then one or both parents may want to consider negotiating holiday time, with the assistance of an attorney, or returning to court to obtain an order ensuring that time. Families with existing orders may find it appropriate to revisit and retool them as the children grow up. Planning ahead will ensure that there is time to address parenting time sufficiently in advance of the holiday.