News from the Firm

Take Note: Our Legal Service Operations and COVID-19

As news of the coronavirus (COVID-19) global health crisis continues to evolve, we at Brick, Jones, McBrien and Hickey, LLP want to share with you our plans for keeping our clients, employees and community secure.  We understand that during this uncertain time, our clients’ legal needs will not go away.  

As of June 7, 2021, all visitors whether vaccinated or not will still be required to wear a mask. However, if agreed to between visitors and attorney or staff member, masks can be removed while in a conference room with the door closed. We will update these policies as more information is provided by the CDC and the State.

In an effort to continue to address our clients’ needs, and to be cognizant of the recommendations of health experts, we will, whenever possible, encourage our clients to meet and consult with us virtually.  Our firm infrastructure and procedures allow our lawyers and staff to work remotely while still providing legal guidance and assistance of the highest quality.  

For now, the Massachusetts Probate and Family Court remains open but has restricted in-person appearances of all kinds.  Only emergencies are being heard through telephonic appearances. Matters of a non-emergent matter are being rescheduled to a later date.  We will be in touch with individual clients to discuss how these restrictions may impact your matter.  

We remain committed to servicing our clients while following recommendations from the World Health Organization, U.S. Centers for Disease Control and Prevention and local authorities.  We value the safety and wellbeing of our clients and employees above all else.  

Please do not hesitate to contact our office via phone or email should you have any questions.

Ex doesn’t want to work, wants support

During the pandemic, the small accounting firm my husband worked for closed when the boss decided to retire. It worked out OK because, as a nurse I was extra busy and able to pick up a ton of extra shifts, and he collected unemployment. Now unemployment has run out, he filed for divorce asking for full custody of the kids saying he is an at-home parent and wants child support from me.

Can he just decide unilaterally to turn himself into an at-home dad and not really work? He has done a few tax returns on the side for friends for cash but refuses to really work. Before the pandemic I worked per diem and was home with the kids far more often than he was. His lawyer is saying a year look back is how the judge will determine the status quo for the kids.

Do I have any options here?

A one-year look back to determine the children’s status quo might have been applicable in pre-pandemic times but the last year and a half have been anything but normal and is unlikely to be the only time period considered by the judge when looking at the children’s status quo for developing a parenting plan. The judge will consider pre-pandemic status quo as well as pandemic status quo in most situations, especially like yours.

I suggest you go on the offensive. Make a motion to have your husband ordered to engage in a job search or, in the alternative, attribute income to him at his pre-pandemic earnings in order to establish child support. The court can order him to look for a job and report on his progress to the probation department on a weekly basis until employed. It is widely known that, right now, pretty much everyone is understaffed and looking for help. If your husband wants a job, he will get one very quickly. If he doesn’t cooperate and get a job, or takes a part-time position, the judge can attribute income to him at his prior earning level.

In support of your motion, prepare an affidavit of your prior work schedules, the prior status quo in terms of who took care of the children when, how that changed during the pandemic and why. It may be that a temporary order from the court will not resurrect your exact prior schedule and instead you will end up with 50/50 time sharing with the children. In the circumstances you’ve described, a 50/50 time sharing sounds like it may be in the children’s best interest anyway given their evolving reliance on one parent and then the other over time. It is likely they will adjust just fine to spending half their time with each of you.

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.

New MA online child support calculator tool

My ex is on SSDI. I do my best to make ends meet as a home health aide with the funds the children get from SSDI and his nominal $25 per week child support payment but it is incredibly stressful. I only work part time because child care is so expensive. I know the child support guidelines are changing in October and I hoped this meant he was going to pay more. But someone told me his support might be cut in half. That would be so unfair. I can’t imagine why they would cut my support.

I was going to try to modify the order to get more money from him since your last column said day care costs are going to be shared. If I can get him to pay half of day care, I can work more hours, which I really want to do — I would like to make enough that I can start nursing school. Now I don’t know whether to try to get more or to sit here grateful for the small amount I do receive. What do you suggest?

The new child support worksheet calculator is now available on the Mass.gov website as a fillable pdf. You can find it at courtforms.jud.state.ma.us/publicforms/PFC0001_2021. Make sure to use a browser other than Internet Explorer if you want the form to work. In order to make a decision as to how to move forward, play with the form and run some different scenarios. The form now has distinctive places for you to include what your children receive on account of SSDI, what he receives and, of course, the amount of child care costs.

When I say play with the form, first put in the numbers used to arrive at your current support order when it was entered so you know what the new order would look like. Then increase your child care expenses, which will allow you to work more hours — of course you will also need to increase your income if you are working more.  See whether it makes sense to take on more hours and more child care based on the new formula and what that does to your child support order. If it makes sense, you need to enroll them in more child care and take on the new hours before you file a modification.

As you look at scenarios, keep in mind that the task force who came up with these new child support guidelines recognized that some lower income folks were losing out on government benefits because their child support was too high. The new minimum weekly order is $12. You have the previous weekly minimum so before you make a decision, you may want to inquire into what additional government subsidies you and your children might receive if your child support was decreased. While you are at it, look into whether there are low-income child care programs you are not already participating in that could also allow you to work more hours.

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.

Big changes in child support guidelines

I think my ex is earning more money than when we got divorced but I’ve been reluctant to take him back to court to try to get more child support in case I am wrong. I can’t afford to be wrong but at the same time, I went back to work and am having a lot of trouble making ends meet with child care costs. I asked him to pay half but he said no.

Is there some way for me to know his current income without risking legal fees if I’m wrong?

This is your lucky day. It almost doesn’t matter if he is earning more money right now because the child support guidelines just underwent a large overhaul. One of the bigger changes was the manner in which child care costs are shared. It used to be only a nominal amount of the child care and health insurance costs were shared — something arbitrary like 15%. The new guidelines are set up so that child care and health insurance are shared on a pro rata basis in accordance with your respective incomes. That change alone will result in higher child support for you from the sound of it.

Another fairly large change is that it used to be the first $250,000 of combined income was used to calculate child support. Now, the first $400,000 of combined income is used to make the calculation. The judges always had discretion to order more support if income was above $250,000 but not all of them did.

Of course, this may have a negative impact on alimony people receive on amounts over $250,000. Many people structured their agreements so that the first $250,000 of income went toward child support and anything above that went toward the calculation of alimony. However, it is permissible to calculate alimony first and then child support. If that were to happen, any alimony being paid should be deducted from the higher earner’s income before putting it in the child support guidelines and any alimony received should be added to the recipient’s income for purposes of calculating child support.

The new child-support worksheets are much harder than the prior forms. They are four pages long and there is no self-calculating form as yet. But, the guidelines are only a few weeks old and do not take effect until Oct. 4, leaving plenty of time for someone to update the apps before they are effective.

Don’t wait until Oct. 4. File your complaint for modification now seeking an increase in support. Once you have a summons, serve your ex along with a demand for his updated financial statement. That way you can file a motion for an increase in support and be heard shortly after the new guidelines take effect. But, just in case you don’t get heard right away, make sure to ask that any increase be retroactive to the date you serve him with the summons.

Don’t let child tax credits slip away

My husband and I are working with a mediator to finalize our divorce agreement. We are close but at our last meeting, my husband said he wanted to revise the part about child tax credits and exemptions. I am not sure why he is insisting on this last-minute change and the mediator could not get him to explain why, but he is insistent.  

At first, I was inclined to just give in and let him have the tax credits but now I am wondering why he is so insistent since our 4 kids spend most of their time with me — especially during the summer because I am a teacher and he doesn’t have summers off. I understand he might be entitled to them because he pays child support, but I want to be sure I’m not missing something here before I agree. Do you have any idea what his sudden issue could be? Is there a reason I should insist on keeping the children on my tax return?

I am not an accountant. You should run this issue by an accountant for more certainty.

Historically, before the tax law changed in 2018, divorcing parents figured out a way to share the dependency exemption, which often times put actual dollars back in people’s pockets by increasing their refunds. Usually the parties agreed to share the exemptions if there were an even number of children and if there were an odd number, they rotated so long as the parent who was obligated to pay child support was current on support. Now, most divorcing couples address child tax credits in agreements and the trend has been to share these credits along the same lines that dependency exemptions were historically shared.

Until now, the credit was $2,000 per child under the age 17. For 2021 only, the amount was increased to $3,000-$3,600 depending on the age of the children. Traditionally, the child tax credit has directly reduced a parent’s income tax liability. However, as part of the COVID-19 stimulus bill passed in March, beginning this month parents can enroll in advance child tax credit payments. If you do so, you will receive an advance payment of half the child tax credit. The other half of the credit will be credited against your income taxes due when your return is filed.

Because you did not say how old your children are, I cannot tell you the exact amount of the paycheck he is envisioning if you agree to his sudden proposal. If all four of your children are under age 6 and you agree to let him claim the tax credit, he is going to get a check for $7,200 from the government pretty quickly with another $7,200 credit against his taxes when he files his return next year. If they are older it will decrease some but still be a nice payout.

Bottom line, do not settle for less than half the credits.

Trying to keep kids safe from COVID hotspot

I brought my children here during COVID to keep them safe. I still think it was the right thing to do. But my husband didn’t agree, and I was recently ordered to return them to Mexico. I know that I can appeal the decision. I did file a notice of appeal, but I think I have to go back anyway unless I want to risk even more trouble.  

My husband and his family are all anti-vaccination and our home in Mexico is in the middle of a terrible COVID hotspot. I am vaccinated but am very worried about my children if I have to return them — one is immune-compromised. Is there anything else I can do to avoid going back at least until the pandemic is over?

You can file a motion to stay the order. The burden is really high, and these motions are not generally allowed. You have to show the judge that you have a likelihood of success on appeal. Initially you file the motion with the trial judge. You should expect it to be denied — after all that was the judge who ordered you to go back. You can then file the motion in the appeals court, where you may have a chance if they believe your appeal will be successful. This is a hard thing to prepare on your own. If at all possible, you should hire an attorney to prepare the motion — even if it is just for that limited piece of properly preparing the paperwork for you.

I don’t know what evidence you provided to the judge during the trial, but I hope you presented evidence of your child’s medical issues as well as your husband and his family’s position on vaccination and statistics of COVID in that area of Mexico. If so, use all of that in your motion. If you did not present that information at trial, you will be prevented from offering it during the appeal process. The appeals court can only consider evidence that was presented to the trial court.

Because motions to stay do not have a high percentage of success, I recommend you also immediately file for custody of your children in Mexico. If you have to go back perhaps there is a way to protect them before you get there. For example, there are areas where COVID is not as prevalent in Mexico — maybe there is a way to get permission to relocate within Mexico. You can also try to petition the court in Mexico to allow you and the children to remain in the USA until the pandemic abates in Mexico. Massachusetts may not be the right place as parenting time would be hard for your husband to exercise but if you offer to move to a border state, options may present themselves.

Rule Change adds wrinkle to divorce

Q. My wife and I have been negotiating our divorce agreement for almost a year working carefully with our daughter’s therapist to cause as little disruption to her as possible.  We have an agreement and suddenly my wife’s lawyer said we need to put the breaks on for a month because of a new court rule.  I don’t know what the new rule is and fear it is just another ploy to prevent us from getting this done.  I am so frustrated by the lack of progress I am almost ready to throw in the towel and just file for divorce – something I don’t feel great about but I don’t know how else to move forward.

Do you have any other suggestions before I move forward with a contested divorce?

A. Given the timing of her putting on the breaks, I suspect the new rule is the change in the Probate and Family Court Standing Order 2-16 which takes effect September 1, 2021.  For many years, all couples with minor children going through a divorce were required to take a Parent Education course approved by the state.  This program raised a lot of questions, not the least of which being – if the parties have a good co-parenting relationship and have agreed on all child related provisions [which many people do] why would they have to spend the extra time and money to take a class to teach to do what they are already doing?  Many such clients of mine over the years have expressed frustration – especially when their schedules made it hard to attend the classes.

Under the suspension order, if you file for divorce after July 12, 2021, you are no longer obligated to take the course.  However, if you file before July 12, 2021, not only are you still required to take the course, but the time frame in which to do so is accelerated.  So, the big question is – did you take the course and get your yellow certificate?  Did your wife?  If not, I think you have your answer regarding this sudden need to halt the process.  Rather than stress over the mystery – I suggest you reach out to your wife’s lawyer and ask if this is why she wants to hold things up.  Assuming that is the case, suggest signing everything now and just waiting to file until July 12th.  There is no harm in signing papers now.

If for some reason you learn there is another reason for halting the process, before you throw the last year of your time in the trash bin, calmly express your frustration and your feeling of needing to move forward in some way.  Chances are they will not want the last year to have been a waste either and you can come up with a plan to move this across the finish line together.

Medical Diagnosis is a Change in Circumstances

Q. My Ex got primary custody of our two girls in the divorce and I see them every other weekend and one night each week.  Our youngest is 10 and was diagnosed with diabetes last month.  My Ex was never good with medical things – I always take them to the dentist and annual pediatrician appointments because she is so anxious about medical issues and passes out when she sees needles.  This issue has made dealing with diabetes particularly challenging for our family.  I have been going over to give Kelly her shots multiple times each day but they live 20 minutes away.  

The girls have recently been telling me how angry their mom is all the time and how much pressure she is putting on our 12 year old to learn how to give Kelly her shots.  This is so unfair to the girls.  I know my Ex loves them but she is no longer the best person to parent them every day.  She won’t agree to change the schedule – do you think a court would change it on these facts?

A. This situation is serious and the court will recognize it.  File a complaint for modification asking for primary custody of your children because of this medical change in circumstances.  Also file an emergency motion for a temporary change in the parenting plan.  This will allow you to get in front of the judge quickly after your Ex is served and ask for an immediate change to the plan so you can keep Kelly safe.  Right now, it may not even be OK for Kelly to sleep at her mom’s house until her diabetes is regulated.  

While this may seem a drastic step, it may be the push your Ex needs to get herself help.  Any parent who is too anxious to bring their children to a routine doctor or dentist appointment clearly needs some sort of help themselves.  It is unreasonable to expect you to drive over 4-6 times per day to give Kelly shots or to force her 12 year old sister to do it.  What happens when Kelly’s blood sugar spikes overnight – are you supposed to go over at 2 AM to give her insulin?  Can your Ex even handle doing a finger stick to check Kelly’s sugar overnight?  

Medical technology has come a long way for diabetics but technology sometimes fails.  Even when Kelly gets set up for insulin pumps and glucose monitors there are things your Ex will need to be able to do.  You should expect when you file your complaint your Ex will come in and argue all the medical technology that she is going to employ to manage things.  Over time the kids can transition back to spending more time with her once technology is in place and working well and your Ex has worked out some of her issues so she can handle the unforeseen.   For now, Kelly’s health requires a capable parent under the same roof.

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