Driving Forces in Divorces

Before I begin the intended topic of this newsletter, I want to reflect briefly on my recent commentary about the jury process. After I sent my most recent newsletter, I probably received two (2) dozen emails and telephone calls, asking about my actual opinion regarding likelihood of a conviction for the murder of Odin Lloyd. Despite an inclination that there  would be conviction of second degree murder,  I, for obvious reasons, was not going to state that in my newsletter (and I would have been wrong anyways).

North Attleboro thrived and commanded respect, while being highlighted by national news.  Friends rallied to protect and support families living close to his residence.  The NAPD did an amazing job collecting evidence and making sure that residents continued to feel safe during the investigation. Similarly, the Bristol County District Attorney’s Office rose to the challenge of prosecuting a difficult case, despite the defendant being a known “personality.”  Ultimately, it is a very sad situation for two (2) families, both of which lost, albeit in different ways, a son, sibling, and friend, but also for a small child who may never really have a real father.

Now, its time to separate from this topic and to discuss the driving forces behind divorces.

My divorce clients are among my most captivating, because they all come to my office about to embark on a new journey. Most of my clients are ordinary people, who are just trying to navigate their way through a rough patch in their life, whether the situation was wanted, forced upon them, or driven by a mutual decision.  My clients usually have two major questions: What will happen with my children and finances?

The Court removes emotion, to the greatest extent possible, when deciding cases. Judges care most about the best interest of children, making sure that all minor children have their best interest and needs met. To the contrary, the division of marital assets is treated, in most cases, as a math problem.  In Massachusetts, marital assets will often be divided as near equally as possible, but it is not a community property state, requiring an equal division.

Division of the marital assets is defined by Massachusetts General Laws c. 208 $34.  The Court considers the following factors when dividing assets: length of the marriage, conduct of the parties during the marriage, age(s) of the parties, health of the parties, occupation(s) of the parties, income of the parties, station or lifestyle, vocational skills, employability, debts, potential for future income, and the needs of the parties.  Therefore, where conduct of the parties is only one (1) of the factors considered, it does not play as significant of a role in division of assets as commonly thought or often hoped.

I always defer to my clients on the decision of whether to file with no-fault or fault grounds. In ten (10) years, I have had only a handful of clients who want to file for a divorce with fault grounds to either “send a message” to future, significant others or for their personal satisfaction of being “right.” In my experience, it is rarely worth the extra drama or financial commitment necessary to litigate a case on fault grounds or out of distain.

Imagine that someone has just made some nasty allegations about you. How would you feel? For most people, the first reaction, regardless of whether or not the allegations are true, is to be mad. Real mad. Maybe embarrassed. Nonetheless, you would probably try to clear your name and reputation. How do you do that? You fight back with every ounce of energy. When it comes to litigation of a divorce, it raises the emotional impact on both parties and  the legal bills.

Ultimately, both no-fault and fault divorces still involve dividing assets according to Massachusetts General Laws c. 208 $34 and, while it may tip the scales in one party’s favor slightly, it rarely puts one party in a drastically different position than it would have been otherwise.

My job is to simplify the process for my clients by attempting to reduce the emotional element.   I’m not going to attempt to convince you that I don’t feel some of the pain of my clients during the process, because I certainly do, especially when there are children involved. Nonetheless, my client’s best interest, including their children and assets, are my priority.  I take that responsibility very seriously, by minimizing the amount of costly litigation necessary and protecting what remains as they start their travels on an unknown road.

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Divorce Before Marriage?

Can you be divorced without being married?

“First comes love;
Then comes marriage;
Then come Little Munchkins in the baby carriage!”

Has anyone ever noticed that divorce was not mentioned in that nursery rhyme? Perhaps it wasn’t included, because divorce wasn’t as common when the song was written. Perhaps it wasn’t included, because we would all rather think optimistically about marriage and family. Perhaps I just spend a lot of time working on divorce cases, so I think about these things in my “spare” time.

Historically, you have needed to be married in order to actually GET divorced. It’s not totally true now. I can almost see you shaking your head, re-reading that last sentence, thinking I’m crazy, and wondering, “How can that be?”

Same sex couples have had the freedom of marital rights and privileges in the Commonwealth of Massachusetts for over ten years, Goodridge v. Department of Public Health, 440 Mass. 309 (2003).   When Massachusetts started to conduct same sex weddings, many couples planned destination weddings within the Commonwealth. Similarly, same sex couples have flocked to the many other states that now conduct such unions.

Thirty seven states currently allow same sex marriages. If you get married in a state that allows marriage, you can get divorced in that state or in any other state that allows for same sex marriage. Regardless of whether the spouses are traditional or same sex, the same laws and procedures are applied in Massachusetts, under MGL c. 207, and similarly in the other states.

It gets a bit more confusing and complicated if the state in which you reside does not currently allow same sex marriage. Often, a conflict of laws occurs if a divorce is sought. For a state that does not recognize same sex marriage, it is, theoretically, impossible to allow the parties to divorce. Some states are currently allowing parties to file for a divorce, even if they would not otherwise recognize the marriage; however, when the state will not allow the parties to divorce in the state, the couple may either seek a divorce in the jurisdiction in which they were married or challenge the constitutionality of the same sex marriage in that jurisdiction.

The United States Supreme Court is in the process of hearing and deciding several same sex marriage cases. A favorable outcome will bring the freedom to marry nationwide, and, by default, the same would be true for potential divorces. The Supreme Court has already held that the Defense of Marriage Act of 1996 (“DOMA”), Section 3 was unconstitutional, and that all loving and committed couples, heterosexual or homosexual, who marry deserve equal legal respect and treatment, Windsor v. United States, 133 S.Ct. 2675 (2013). Accordingly, it would be surprising if they did not continue to expand on the rights of same sex couples in future rulings.

Regardless of whether you believe in same sex marriage, things are changing and they are happening quickly. Given the current composition of the Supreme Court and the trend of the country, the process should be interesting to watch. As things continue to change or if you have questions, please feel free to contact my office and refer to either www.glad.org or www.supremecourt.gov/opinions

As always, please feel free to contact me for additional information. Please feel free to send this newsletter to anyone who may be interested. Receipt of same is not intended to offer specific legal advise or create an attorney-client relationship.

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Finding the Perfect Lawyer

Everybody seems to know a good lawyer joke. Here’s one to add to your collection:

What do dinosaurs and good lawyers have in common? They are both extinct.

Some attorney jokes are quite funny, but this one makes me cringe. There are plenty of great attorneys in alive and practicing.

At some point, you may need a dinosaur, I mean attorney, to help you with a problem or to plan for the future. If you know an attorney, you would probably call him or her. If it is me, I will gladly either help you or refer you to someone who can. If you don’t know an attorney personally, you might ask some friends or conduct an online search.  Regardless, you want to be sure that you find the correct attorney for you.

Experience is important in hiring any professional.

It is not only important to find an attorney, but to find the right one.  Look for someone who handles the type of cases or matters with which you need help. Even general practitioners, like myself, do not handle all types of legal matters. Although my practice includes doing basic estate plans, I have limited knowledge regarding elder law, which is pretty specialized.  If I were to accept a Medicare or Social Security case, it would not be a service, but rather a disservice, to my clients; however, as a service to my clients who need help with those issues, I am happy to provide them with the names of people who can better assist them.

Understanding your goals should be a priority.

Your attorney should understand both your short term and long term goals. A good attorney incorporates your income, family, education, personality, and lifestyle when presenting legal options that might be appropriate for you. For example, if you are getting divorced and have a two (2) year old child, your attorney should be thinking not only about child support, day care, and activities, but also future college tuition; if not, you are likely 16 years away from appearing before the court to discuss how to pay for college.

Communication between you and your attorney should be simple and basic.

You should be able to easily understand what your attorney is telling you and should always feel comfortable asking for clarification or additional information.   There might be moments when you may misunderstand or disagree with what your attorney is saying, and that is okay, as long as you can discuss your concern and have it rectified to your satisfaction. I always try to end conversations with my clients, by asking, “Did I answer all of your questions?” Sometimes I forget to make the inquiry, but I always hope that they remember that I am open to additional questions.

Availability and accessibility are crucial.

I often hear people state (with frustration) that their attorney has not called them back. Your attorney likely has a busy caseload and outside life, but you should always feel as though you are a priority. Generally, it is reasonable to receive a return telephone call or email within 24 hours, weekends excluded, and with the exception of emergency situations. When I opened my practice ten years ago, I made a conscious decision to use my cellular phone as my exclusive office phone; while this is not the typical phone arrangement, it works for me and my clients seem to appreciate the accessibility.

First impressions should be positive.

When you meet a potential attorney for the first time, you should feel comfortable with that person. Regardless of what kind of case he or she is  helping you with, you will spend a significant amount of time talking with that person. It is very important that you feel as though you can talk with the attorney and confide private information, when necessary and relevant. Don’t be afraid to ask specific questions about the practice. Attorneys have different styles, so it is not uncommon for people to meet with one or two attorneys prior to choosing one to retain.

Fees should be reasonable.

Fees can vary greatly and be assessed in various ways. Some cases are typically billed by the hour, such as a divorce, while others are one price for the entire case, such as an estate plan or some criminal matters, yet others are a percentage of the settlement and contingent upon resolution in your favor. Fees are established on many factors, including, but not limited to, location, size of the practice, experience, reputation, and case load.  Your attorney should explain how you will be billed for services rendered and provide a Fee Agreement for you both to sign. The Fee Agreement should not only explain the fees, but also state the responsibilities of both the client and the attorney.  Similarly, he or she will likely expect a payment or “retainer” prior to beginning your case.  A smaller retainer is not always better, because the attorney will likely ask for replenishment of the retainer when it is running low; the larger retainers often are based on a better assessment of what the case will actually cost to litigate.

Fending off problems before they occur.

A good attorney can identify potential problems before they occur and assist you to avoid them.  Similarly, your attorney should be prepared to aggressively argue your case, including up to and through a trial; however, your attorney should also be discussing how to minimize conflict if and when it is in the best interest of resolution.

As always, please feel free to contact me for additional information.

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