Unbelievably, the pandemic has now been with us for almost a year. During this time, the Massachusetts Court system has adapted in order to remain responsive while providing safety to both the public and employees. For the most part, hearings now occur virtually, either via Zoom or by telephone. New protocols are in place that relate to the scheduling of hearings, including trials, and the documents required prior to hearing. In some cases, documents can be filed electronically. If you are considering filing for divorce or for other relief in one of the Massachusetts Probate and Family Courts in Massachusetts, Attorney Sullivan is available, either by telephone or via email, to assist you and is knowledgeable about the current protocols and requirements.
Coronavirus and the Court
Are you concerned about how the courts are handling the coronavirus outbreak? You are not alone. The trial courts in Massachusetts have issued new rules designed to protect litigants, attorneys, and staff. You may see the rules themselves here: https://www.mass.gov/doc/probate-and-family-court-standing-order-1-20-court-operations-under-the-exigent-circumstances/download. In the meantime, if you have a particular concern about how your case is impacted, Attorney Sullivan is available to assist you. Information coming out of the trial courts is being updated daily. Most importantly, take recommended steps to protect your family, yourself and others; be safe.
UPDATE from the Supreme Judicial Court on 4/27/20:
| The Supreme Judicial Court today issued an order updating the status of operations at state courts and courthouses. Among other things, the order continues all jury trials until at least July 1, continues most bench trials until at least June 1, tolls various deadlines through the end of May, and directs each trial court department to identify categories of non-emergency matters it will attempt to address virtually and post notice of those categories on the Courts’ COVID-19 webpage. The order is effective May 4, at which time it will repeal and replace the order issued on April 1. |
Alimony no longer deductible: what now?
How will alimony be calculated in Massachusetts, now that for orders entered after 12/31/18 it is not deductible to the person paying? There is no definite answer to that question, unfortunately. Massachusetts statutory law provides that in most situations alimony will not exceed the lesser of 30-35% of the difference in the parties’ incomes or the recipient’s need. However, when that law was adopted in 2012, the assumption was that alimony would continue to be taxed to the recipient and deducted by the payor, neither of which is true for new alimony judgments entered after 12/31/18. The state legislature has made no progress in revising the statute, leaving the issue for the Probate and Family Court to resolve.
With this in mind, in cases calling for alimony, the best approach will be to negotiate an amount of alimony that reflects what would have been the tax treatment pre-2019. Those calculations are more complicated that they may appear, because of the variety of tax brackets that may apply to each party. Attorney Sullivan is prepared to represent either party relative to alimony issues, negotiate and calculate the options, and, if needed, obtain the analysis of a tax professional.
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.
