News from the Firm
There’s no winning when kids are in the middle
My ex left me for someone in his office. He has our children every other weekend and one night each week. I didn’t want the kids to meet his girlfriend right away so we have a clause in our agreement that prevents either of us from introducing the children to a new partner until we have been divorced for six months. We have only been divorced for one month.
Yesterday I was visiting a neighbor and she had my ex’s Christmas card on her table. There are pictures of him, our children and his girlfriend together during his summer camping vacation. Neither he nor the children told me she was there. I am so angry that he didn’t keep up his end of the deal. I want to file a complaint for contempt. Do you think I will win and if so, what can I win — can I take away some of his parenting time?
While I’m sure it came as a shock to see the photograph, before you run off and do something that will hurt your children even more — like trying to penalize them for an error in their father’s judgment — you need to think this through. There is no winning here. It is unclear whether your divorce agreement was in place at the time of his summer vacation. If you were in the process of negotiating the agreement and it was not yet signed, he didn’t violate anything and your contempt will not only fall on deaf ears, but it will make you look vindictive. When you negotiated your agreement did you ask him if the children had already met her? If so and he lied about it, your anger is understandable. But if you never asked, that is another thing you need to consider before going on the offensive.
The more troubling piece to me, which it appears you are overlooking, is why didn’t your children tell you about her. Did your ex ask them to lie? Or did they have a sense telling you would hurt your feelings and they were trying to protect you? Either scenario is not good. You cannot put your children in the position of having to be the adults regardless of their ages. If he asked them to lie for him, that is a bigger conversation you need to have with him directly. Then the two of you need to have the conversation with your children that it is not OK for them to lie to either of you even if the other asks them to.
If that is not a conversation you can have together with your children, you should get professional help by way of a Parent Coordinator or family therapist rather than bring this matter before a judge. On these facts, no judge is going to take away his parenting time. Instead you would both likely be sent to some sort of parenting class to learn better communication and conflict resolution skills.
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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Controlling ex uses parent coordinator as cudgel
My ex is super controlling and unfortunately I agreed to use a Parent Coordinator for two years. Having a PC has allowed my ex to continue to micromanage my life and the lives of our five kids. He has brought every single disagreement we’ve had to the PC. Working with the PC became a full-time job. I literally had dozens of emails each week that had to be responded to within 24 hours. I was constantly getting links to hours-long videos that I was required to watch as part of the process. With five kids under 10, my days are crazy enough. There is a reason I do not work right now. I do not have time for a real job, let alone a fake one created by the PC and my ex.
The best day ever was when the PC decided she could no longer work with us. I thought we were done and the micromanaging was over. I was wrong. I just got a letter from my ex’s lawyer saying if I don’t agree to a new PC for another two-year period, she is filing for contempt. I only agreed to one two-year term and that two years will be up in March 2022. Can I be forced to start over?
I have not seen your agreement so I cannot speak to the terms regarding reappointment of a PC. I can say typically agreements call for a two-year term and a voluntary re-engagement process thereafter — voluntary being key. There is a case that basically prevents a judge from ordering someone to pay a PC when they do not agree to the process. If you want to read it, search for Bower v. Bournay-Bower. This is good news for you, unless of course your ex volunteers to pay the PC in full. Although, if he was willing to be fully responsible for all costs, he might think twice about the number of issues he raises when his pockets start to get lighter.
Most agreements call for what you do if the PC you select is no longer willing or able to serve. Without knowing what your agreement says, I can only suggest you write the lawyer back and explain that the PC process has been nothing but an exercise in your ex continuing to exercise control and micromanagement and not something you are willing to repeat with a different PC. Explain that your time is better spent parenting your children than hours upon hours of watching videos and responding to emails.
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If you get served with a contempt complaint, file an answer in line with your response letter and be prepared to tell the judge what the process was like and why you will not re-engage. Bring examples of the emails. He should not be able to meet his burden for a finding of contempt. Also, a contempt hearing would probably not be scheduled until the eve of the two-year mark, making this a non-issue.
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.
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.