Divorce
Still waiting for child support decision
My divorce trial happened last March. It took two days and one of the issues was child support. I understand everyone is busy right now and my lawyer keeps telling me to wait when I ask about getting the decision. I don’t know what is reasonable at this point. I do know that the child support guidelines changed in October and I’m worried that our order will be wrong.
At the time of our trial, I was still home with our son, but he started kindergarten in September and I’ve since gotten a job. He attends extended day afterschool and I pay for it — my ex refuses to contribute because there is no order requiring contribution. I also just learned that he changed jobs and rumor has it is earning a lot more. My lawyer doesn’t want to do anything until we get a judgment. But, if we know the judgment is going to be wrong, I can’t understand why it makes sense to wait.
What do you suggest and how long is reasonable to wait for a decision?
Right now, there is no hard and fast rule about how long you might wait for a decision. There are time standards and suggested guidelines but even pre-pandemic, depending on the judge’s case load, some judges were backed up as much as a year in rendering decisions. Most two-day trials should get judgments within six months so it almost feels like any day now for you. But, in this post-pandemic world, there is no real way of knowing. If you insist your lawyer formally inquire, there is always a fear of negative consequences.
I do think you should push for a motion to modify the existing temporary order of child support. If you do, both sides will need to submit updated financial statements as well as new child support guidelines worksheet, assuming you can get a hearing. Of course, it is equally possible that if the judge sees you are scheduled for a motion hearing they will issue a judgment rendering your motion moot.
Because the judge can only issue a judgment based on the evidence presented at trial, you are correct in that the judgment will likely be wrong when compared to current child support guidelines. If you receive a judgment that is no longer accurate under the new guidelines, file an immediate modification of child support and ask for a temporary order hearing to adjust the support to the correct level.
To answer the why wait piece of your question — I do not know who your judge is but I can tell you some of the judges have moved counties since March. It may be that your judge is now sitting in another county and your lawyer does not know how to navigate getting something heard out of county and/or is worried a replacement judge will refuse to hear the case. While that may sound silly to you, to us lawyers it can be a difficult path to navigate.
Divorce issues can be arbitrated separately
I read last week’s column and am thinking about arbitration as well. I heard that you can limit the family law issues that you agree to arbitrate and wonder if it makes sense for my situation. Right now, we have an agreement about dividing the assets but we cannot agree on custody or support. My wife thinks I don’t earn enough money and a judge is going to attribute a higher income to me. I used to earn a lot more but had a career change during the pandemic after my old company closed. I love my new job and the flexibility I have but I do earn about $50,000 less per year. I am not sure I could find another job earning at the higher rate but even if I could, it would mean I would not have the flexibility to spend as much time with our sons as I now spend. I want to be there for them and I am willing to work hard to support them. Should I agree to arbitrate and can the arbitrator decide both these issues?
Great question. Limited issue arbitration is an avenue forward for you. You could, for example, agree to a binding process with an arbitrator so that the arbitrator decides the limited issues in dispute, which in your situation, sound like a parenting plan for your children, as well as a dispute around what you can or should be earning, which may or may not impact support. The only concern in deciding issues piecemeal is that in some situations, one could have an impact on the other. For example, if you had an arbitrator deciding your entire divorce, they could decide to give your wife a little more from the marital estate in exchange for a break on support you might otherwise pay if you were earning $50,000 per year more as you used to.
But if you’ve already agreed to divide the marital estate in half, the arbitrator won’t have the ability to do something creative like this and will simply be faced with deciding the two issues you present to him or her, independent from what you have otherwise agreed to.
Perhaps mediation, which is a non-binding process, might be a better avenue for you if you want to maintain the ability to be creative and deviate as may be necessary from the agreements you already have to enable resolution on the case as a whole. But if you do not think you will be able to agree on everything with the assistance of a neutral mediator, and/or if you want finality quickly, arbitration is the way to go.
Just beware, the best interest of the children is, by statute, something that must be determined by a judge. So be prepared for the judge who ultimately approves an arbitrator’s award to look closely at the parenting component before adopting the arbitrator’s award and finalizing the divorce judgment.
Understand basics of arbitrating a divorce in Mass.
My wife and I are interested in arbitration for our divorce. We tried mediation and still have issues that we cannot resolve. The mediator seems to think we could just transition to arbitration with him but that doesn’t seem right. And we prefer not to go to court for a decision because we’ve heard horror stories about delays in getting heard. Even worse, I’ve heard of people waiting a year or more for a decision after a trial. I don’t understand how that can happen and definitely want to avoid something like that.
Can you explain how arbitration works, what the rules are and whether I can use the same person to arbitrate that we used to mediate?
Family law arbitration in Massachusetts evolved out of case law rather than statute. By that I mean that the legislature has yet to pass a bill that would dictate how to arbitrate family law issues. For now, we are using arbitration rules from a very different type of law along with a decades-old case that essentially says it is OK to arbitrate a divorce. Right now, the legislature is considering a bill to enact some rules around family law arbitration so if you are truly interested helping this process along, you can contact your state representative and senator and ask them to support the Family Law Arbitration Act. Until then, you can agree with your wife to arbitrate your divorce, but it is a bit like the Wild West.
It is important that you chose someone who understands family law and the rules of evidence as your arbitrator. I highly recommend against your mediator’s suggestion that you use him as an arbitrator. Mediation is a confidential process and neither of you should go into arbitration feeling your hands are already exposed or that the judge has pre-judged your situation. You need a fresh set of eyes. Retired probate and family court judges are often a good choice to serve as an arbitrator. Alternatively, practicing family law attorneys who have been trained in arbitration and who, themselves, have trial experience are also a good source. If you do not know any such people, you can consult the website for the Massachusetts Chapter of the American Academy of Matrimonial Lawyers as one resource.
Before beginning arbitration, you will need to sign an agreement setting out the rules. The arbitrator you choose should have a contract that can be modified based on the rules you want. For example, you can agree to relax rules of evidence or not. You can agree on which issues to arbitrate. You can agree on certain timelines for the trial and how long the arbitrator will have to make a decision.
You will still need to present the Arbitrator’s Award to the court for “confirmation” in the end to get your divorce decree. However, the judge will have very limited ability to change the award so that part is generally smooth in the end.
Vax stance can be cause for custody adjustment
I live with and care for my mother who has cancer and is undergoing chemotherapy. COVID has made this arrangement tough on our family because I have primary custody of our two children who until now were not eligible for vaccination. My ex husband has insisted they continue with all of their sports (hockey, soccer and swim team). There are no longer mask requirements in many places and children follow their parents’ examples. If I take them in a store, we all wear masks. I know when he takes them places he does not wear a mask nor does he require them to. They always complain to me about wearing masks because dad doesn’t require it.
At home I often have to keep the children away from my mother — especially when they are in quarantine, which happens frequently based on other children in school having COVID or being exposed in sports. It makes parenting while caring for my mother incredibly hard and I worry about the risk to my mother and the kids. I even suggested he take the kids more until the end of the pandemic if he wanted to keep them in all their activities and take them out maskless. He rejected my offer.
I was so relieved to learn our kids could be vaccinated and made appointments for next week. My ex just informed me he objects to vaccination and because we have joint legal custody, I cannot overrule him. Do I have any options here? Can I get a judge to order vaccination?
Every judge is different and every situation is different but the judges are sensitive to the issue. I do not know why your ex objects to vaccinations, but I do know some judges are ordering vaccinations when the issue is contested. The larger impact of this decision falls on your shoulders where the children spend most of their time with you, you are caring for your mother, and he has rejected the idea of doing more of the parenting. So from a purely impact driven approach, you should have more of a say in whether or not to vaccinate.
You should file a compliant for modification seeking sole legal custody for purposes of making medical decisions regarding vaccinations. You can narrowly carve out this exception to pure joint legal custody. The changed circumstance is the pandemic, the impact it is having on your home life and your ex’s position on vaccinations. Then, once you serve him with the complaint, file a motion for temporary order granting you sole legal custody for vaccination decision purposes. Be sure to provide all of the details you gave me in an affidavit supporting your request, i.e. his insistence on participation in sports, unwillingness to spend more time with them, having to keep them away from your mother when they are regularly exposed, etc. The more detail you provide to the judge the more likely you will get a temporary order allowing you to decide to vaccinate.
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Ex wants to fiddle with custody – in his favor
Now that my ex is re-married, he has decided our children should spend half their time with him. Up until now, he has seen them every other weekend but cancels a lot — especially during ski season when he goes weekend skiing and they play hockey so they cannot go with him. He lives an hour away and thinks because our oldest just got her license, I now need to share in buying a car for her so she can drive herself and her sister to school from his house during his weeks. To me this is completely ridiculous — I didn’t agree with his plan so he just served me with a complaint for modification also looking to cut his child support. Under his new plan he wants me to pay him support since I make more than he does.
I have not gone after him for funding the kids’ 529 account or his share of uninsured medicals and extra-curricular activities. I just didn’t have the energy to chase him — he was never supportive of their hockey so I knew it would turn into a fight over letting them play if he had to pay. Now, I think I should tell all of this to the judge so support doesn’t change. Is that how this works?
These are really two different issues and two separate cases. Judges do not like when you mix apples and oranges trying to trade time with the children for money or only seeking money because he is seeking time with the children. However, that is not to say you shouldn’t now ask him to put his money where his mouth is.
First you need to file an answer and a counterclaim for modification asking the judge to order his parenting time reflect the actual time he spends with the children as opposed to what he now wants in place. It sounds like your children are old enough where their desires will be taken into account, so ask the court to appoint an ARC attorney for them so that they get a say in their parenting plan. They are probably more interested in spending time with their friends than either of you, but he lives further away from their friends so chances are they won’t want a schedule change.
Separately, you need to gather all of your receipts and send him a demand letter with a detailed spreadsheet and copies of the receipts for all of the expenses you have paid that he has not reimbursed. Ask that he now pay what is due and offer a payment plan as this is likely a large number. If he doesn’t respond to your demand letter within 30 days, file a complaint for contempt. Then, you can tell him you are open to discussing a global settlement before the contempt hearing — oftentimes this will result in restoring sensibility and peace — especially if you are willing to forgive some of his debt for status quo.
Judge Likely to Nix Agreement Terms
Q. My husband and I have reached an agreement in mediation which I think is really good for our kids. I was telling my friend about the agreement we came to and she thinks the judge won’t approve the agreement. So, here goes – my husband moved into a 1 bedroom condo in Boston which is not at all appropriate for our children ages 2 and 4 to spend time with him. He is going to come to our house in Dover two nights each week to play with them after work and he is going to move back in every other weekend. We have a guest suite where he will stay. We also agreed that when he decides to move out of Boston, he can have weekends at his house if his new place is acceptable and he can have overnights during the week if he moves to Dover.
What do you think of the agreement
A. I think your friend is right, depending on who your judge is, it may not get approved. You have a number of different issues which a judge might reject. First, your agreement is a modified nesting arrangement. In a typical arrangement, you would move out during his parenting time but that is not what you said. You are essentially supervising his parenting time for seemingly no reason. If you are willing to stay elsewhere on his weekends, it is more likely to be approved.
You mention he can have the children on weekends once he moves if the place is acceptable. Acceptable by whose standards? Yours? There needs to be some objective measures he can meet if this is going to work. The most obvious test is whether there is a dedicated place for the children to sleep. I assume that is the reason his current place doesn’t work – it is too small. If there are other reasonable objective measures you agree on, spell them out in the agreement so the judge understands you are not dictating subjective standards that your soon-to-be-Ex needs to live up to before he can independently parent the children.
Also, you do not get to have a say in where he can live in the future with the penalty of his not having week night parenting time if he doesn’t live where you say. He has a right to live where he wants. What if he moves to a neighboring town with a short drive to the children’s school? How far is too far? Some judges will approve an agreement if there is a minutes or miles to school test. Others would say you cannot impose a limit on where he lives at all.
Finally, the judge will likely have trouble with your agreed future terms because you cannot know today what the future will bring for your children. Child related provisions are always modifiable based on the children’s needs so future provisions are not likely to be enforceable and have no place in your current agreement.
Sharing a home during divorce can work
I am considering entering into a long-term nesting agreement with my husband because we have three kids in high school and neither of us can afford to buy the other out or otherwise stay in this town. Two of the kids are seniors and one is a sophomore. Three years seems like an eternity but both our parents live in town so we each have somewhere else to stay during our off times. We are thinking of doing week on week off with the change over happening at dinner time on Sundays.
Our mediator is encouraging this but my friends keep telling me not to do it. If I agree, are there rules you can recommend I put in place? And what would my options be if the arrangement is just impossible to live with?
While I tend to agree with your friends here, I also understand wanting to do the right thing by your children and uprooting them all at the end of their school careers seems very unfair. Nesting, even in short durations, can create many problems and lead to higher levels of discord so if you are going to do it, it is very important to establish clear rules at the outset, to be on the same page in your household including parenting rules, and to have a mechanism in place if either of you decides you can no longer do it.
The biggest issue I see is with new partners. The rule really needs to be that no new partners are allowed in the nesting home. This eliminates complaints of finding a new partner’s underwear in the former marital bedroom — something no one ever wants to find and the surest way to torpedo the nesting arrangement.
The second rule relates to cleanliness of the home. Both parties have to commit to stripping the bed and washing the sheets before the other takes over. Likewise, there cannot be piles of laundry, dirty dishes and general clutter waiting for the other parent to take over and tidy up. This is where you need to involve the children in the rules. They are old enough to understand that you are entering into this arrangement because it will allow them to stay in the same town/house until graduation. But, if they want this, they have to pitch in at home and keep their clutter in their rooms, help with the dishes and do their laundry.
The other critical piece is an escape clause. If one of you decides you just cannot take it any longer, you need the ability to give notice to the other that nesting is over. That notice should trigger a return to mediation to try to figure out what to do from there. It may be a new cost-sharing measure gets implemented — whoever stays pays more — with a slightly unequal division of equity upon a sale once the youngest graduates. Where there is a will, there is a way.
Keep Ex’s medical marijuana away from kids
Q. My Ex had cancer years ago and used a lot of medical marijuana. One of the reasons for our divorce was his carelessness with the marijuana around our children – leaving edibles on the counters near their snacks, etc. We had some very scary near misses. I learned last week that his cancer has returned. I feel terrible for him but I am also incredibly nervous his prior habits will return. He is remarried with two young children. And he has our teenage daughters every other weekend.
I am worried our girls are at the age where easy access will encourage experimenting. I am also worried for their younger brothers. I don’t know how to handle this without looking like a horrible person. I have been a nurse for years and have seen the devastating impact drugs can have on families. What are my options?
A. One option is to seek a modification of your children’s parenting time until your Ex is well again. However, that will not go over well with your Ex, your children or the judge regardless of your good intentions. There are better options to try first.
You need to have a very honest conversation with your teenage daughters. It would be best if you and your Ex can get on the same page and have the conversation together. Sit them down and explain that he is sick and that sometimes with this kind of illness, medical marijuana is a help. Explain that just because he uses it does NOT make it OK for them to try it even if it is out in the open or they find it. Tell them that any experimentation they may want to undertake would possibly harm their father because he would then not have what he needs when he needs it. Putting it that way will give them something serious to consider if they are tempted. Also explain the dangers to their developing brains if they use his medication.
Take it a step further and have a conversation with his Wife. There is a right way to give her a heads up. Don’t point fingers at him but, rather warn her that he was so sick last time he wasn’t always capable of cleaning up after himself and your children were finding his edibles around. That way it sounds like you are just concerned for her children and she will know to keep an eye out.
Also explain to your girls that while marijuana would be bad for them, it would be very bad for their younger brothers so it would be good if they can be extra helpful with their brothers while their dad is sick.
With any luck, you can all pull together and be the supportive team your Ex needs right now. But, if you have any inclination that the “right” way of doing this is failing, you can always ask the court to intervene – then you can at least say this was your last resort.
