Give It Away or Put It Away or Throw It Away – by Taylor Mali (the poet)

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At the end of the marriage,

whatever stuff is left—
like crutches or rustic tools
you rarely used, tight shoes,
dusty books, or even love—
whatever lies piled on the floor
you have to find a way to store
after the divorce. Unless
of course before that day
you took the time to give away

or sell (at tag sale or on eBay)
all that did not break apart
in the course of breaking up
your home and heart,
some of it, no doubt, cracked
from the start, or else
abandoned in the name
of moving on and living;
everything must be given away,
or in some other way forgiven.

What’s left must be stored somewhere,
be it in the flood-cursed basement
of a friend, or worse, the rented
metal room where love, like wine,
goes to improve but never does.
Or, at least, the body, let loose
in memory’s uncharted attic,
or left undressed in some empty
chamber, say, the 5 by 10 container
in the middle in your chest.

At least three roads diverged in the woods and I, I took the one less traveled by…

Posted on by Heidi Webb
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Divorce Consultation: A new paradigm

After practicing family law for over 25 years, I knew something was missing. The traditional legal process of divorce only deals with the legal issues. My clients not only needed legal advice, but life planning strategies, emotional support, and a basic financial overview. Those issues were not traditionally addressed in a lawyer’s office, leaving a gaping hole for the client not only through their divorce, but also once the divorce became final.

Ascribing to the theory that if we do things as we’ve always done them, we’ll get the results we’ve always got; I decided to deconstruct the process of how we approach divorce. Out of this came a new paradigm and my new service, Divorce Consultations.

Together we examine current family dynamics and a vision of your post divorce, restructured family. This process includes goal planning for before, during and after your divorce, as well as a pre-divorce financial review, and emotional support. For a more complete picture, the likely goals and visions of a client’s spouse are also reviewed. This process allows clients to understand both the strengths and weaknesses of their cases and ultimately, helps them to achieve their most favorable outcomes.

In order to help you understand how the Divorce Consultation process plays out, I’ll tell you about Holly. When she first came to see me she was paralyzed with fear at the thought of ending her marriage; sad because her dream marriage wasn’t at all what she’d hoped it would be; giddy at the prospect of creating a new and happy life; scared for her children’s happiness and financial future; petrified her husband’s rage and anger would be visited upon her and her children in a litany of ways.

I listened. I listened both as a lawyer, and as someone trained in counseling and consulting psychology. I listened with various hats; litigator, mediator, collaborative attorney, counselor. I observed. I tried to help her understand possibilities for herself, for her children, and yes, for her husband. Together we imagined where she wanted to be in a year, then three years, then five. I listened with the firm belief that if you first create a path, you’re much more likely to successfully navigate your journey.

I asked her how her kids doing? Not well. Was she happy? Not at all. Did she think her husband was happy? Certainly not. Had they together worked with a marriage therapist? He refused to go.

I educated her about Massachusetts law relative to a division of marital assets, alimony and child support. Two hours later she was better informed and better equipped to assess her options and evaluate her future realistically. She could allow herself the freedom to view her life through a different lens.

It was a number of months before she called me again. This time she had a different resolve. She was sure her marriage was over. She suspected her husband was having an affair. Her kids were in various states of psychological distress.

When she came to see me this time it was to discuss and process how she would proceed toward a divorce. What path should she take? Mediation? Litigation? Collaborative Law? What lawyer or law firm should she hire? How could she determine if her husband was having an affair? Did she really want to know? How would she tell her husband she wanted to divorce him? How would she tell her children their parents would be getting a divorce? And lastly, did I think it was odd that before she did any of this she wanted to take one last family trip to the south of France. She wanted to create a positive lasting family memory for her children. She was confident she had the strength to do it now that she had the clarity of mind and structure to move forward. I didn’t think it was odd. In fact, I thought with the right planning and foresight it had the potential as they moved into the divorce, to give their children confidence that their parents could work together for their benefit.

We went to work. I reviewed the parties’ finances. Together, we created a timeframe for when she would talk to her husband. I referred her to a therapist for herself and her oldest child who was in the most distress. We planned when she and her husband would together tell their children he would be moving out of their home, and that they would be getting a divorce. In fact, we wrote a script for her husband and her to review and agree on before talking to their children.

After evaluating the likely psychological and financial dynamics that would play themselves out during the course of their divorce, Holly and I discussed the processes of mediation, collaborative law and the more traditional litigation based model of divorce. As the trust she had once had in her husband had been eroded by a variety of deceits he’d visited upon her, Holly had no confidence in his ability or desire to be honest and forthcoming in their divorce. She could not imagine sitting in a room with him, even with the support of legal counsel, to discuss and resolve the dissolution of their marriage. In light of our conversation and her needs, I created a short list of attorneys for her to interview. I armed her with questions to ask relative to the handling of her case. She talked with the attorneys without any initial consultation fees and by her agreement with me, I provided the attorneys with a legal synopsis of her case. She was not financially beholden to anyone. We talked again after her meetings and my objectivity around the strengths and weaknesses of her case allowed her to make a better hire. The emotion of hiring a lawyer was taken away, since she was equipped with the knowledge and confidence that she was heading down the right path.

The lawyer she hired is savvy in the world of taxes and high finance and his expertise was necessary since her case involved a number of creative compensation schemes. She was confident the lawyer she hired was a man whom her husband would respect and see as a peer, and we had determined those were necessary factors for both her husband’s psyche and the case’s smooth progress. She believed he was the best “fit” for her and for her gaining a favorable settlement with her husband, but she didn’t believe his style was appropriate for their custody and parenting plan needs. With the agreement of her attorney, I agreed to remain available to work on custody and parenting issues as needed.

She started the journey down her path. Seeing her clarity and confidence, her husband looked at her and said, “Alright, now who do I hire?” She called to see if I could help. Although I could not ethically meet with him since she was my client, I gave him a list of attorneys to interview whom I thought would work well with her attorney. He hired one of the attorneys from that list.

Kid gloves and steel hands were called for to handle this case. It involved psychological abuse, an affair, many millions of dollars, young children with years of therapy, private education and college ahead of them, large personalities, shattered dreams, two homes, antiques and an art collection to divide, reputations to keep intact, and futures to envision. It was accomplished peacefully, not entirely without angst, and not without some bumps along the way but with clarity, resolve, and support.

She got a fair and just settlement. She stayed in the parties’ marital home with the children. He kept the parties’ vacation home. She had enough money from the settlement to purchase another vacation retreat, a result that at the outset of their divorce, she couldn’t imagine. Custody and child support were negotiated, and both parents were satisfied with the outcome. They were ready to move on to the next stage of their journeys.

I had the pleasure of seeing her recently. She exuded peace and relaxation. She was a far cry from the paralyzed, sad, and scared woman I had met only a few years ago. Her former husband and she are effectively parenting together. Her children seem to be thriving in school with the support of both of their parents. I think it is fair to say that having successfully navigated her journey, she can now look forward to new destinations. Divorce Consultations is a proven and effective model to help clients prioritize their goals and maintain stability for themselves and their families at a most vulnerable time in their lives.

The Key elements for a successful divorce are:

  • Starting the process with a framework: legal, financial, emotional, and personal goal planning.
  • Hiring the right counsel that is not based simply on reputation or word of mouth, but rather who is truly a match for your personal situation and the process or processes you decide to pursue.
  • Pre-planning what aspects of your divorce might be best suited to which process (perhaps litigating one portion and mediating or arbitrating another) and “custom fitting” your case accordingly.
  • Knowing the intricacies of finances not only for today, but also for three, five, or fifteen years from now.
  • Creating an atmosphere where you and your children are well cared for emotionally throughout the process.
  • Establishing attainable goals for your new life.
  • Heidi R. Webb © 2013

 

Yours, Mine and Ours: Non-Compete Clauses in Divorce

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In a recent Massachusetts divorce matter, the Appellate Court remanded back to the lower court the portion of a decision in which the lower court judge had found that he lacked the authority to create a non-compete clause between the parties, who owned a feed and grain store together during their marriage.  The former husband was buying out his spouse’s interest in the business and wanted to ensure that she in turn would not open her own competing store vying for the same customers.  Although the Appellate Court stressed the limited nature of its ruling, and took no position as to whether a non-compete order should be granted, and if so, how broad it should be, it was clear in granting the probate judge the authority to permit such an order.  This ruling allows the probate court to apply the contract law concept of non-competition to divorcing spouses, giving them broad and flexible powers extending to any actions necessary to afford any relief in the best interest of a person in their jurisdiction.  The Court went on to caution that the measure should be reasonable and no broader than necessary to protect the valuation in transfer.  In this case, the judge must go back and decide whether or not a non-compete order against the former wife is necessary to protect the value of the feed and grain store granted to the former husband.

This ruling requires judges to become experts in areas of business where they may not have any experience or knowledge.  Expert testimony will become an integral part of the division of assets where parties own a business together.  Formally, probate judges were only concerned about the value of a business at the time of the divorce, and how each party should be compensated.  With this ruling, what happens to the business after the divorce comes into play.  The good will and reputation of these businesses may become open for dispute.

What is a family?

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I have received passionate responses to the blogs I’ve written recently concerning non-traditional family issues (a father being ordered to pay child support for twin daughters born (via IVF through sperm not his and egg not his wife’s) to his wife while they were married but in the process of divorcing, and shared custody being ordered between a non-biological mother of a child born to her wife during the course of their marriage and the biological mother, her wife). 

The non-traditional parenting issues now more regularly coming before the Court are a result of very old laws running up against very new family structures.  In a sense, the Court is playing “catch up” with society and in doing so it is being asked to make rulings in the most intimate of scenarios.  In many ways to me these days hark back to the days of desegregation when by necessity, the Courts led the way through integration.  It was only through the Courts’ orders that legislatures realized (often reluctantly) that they needed to act in ways to ensure equality under the law.  Courts are once again being forced to reconcile and interpret the laws they are sworn to uphold with the social and technological changes we are making as a society.

The Courts’ interpretations of laws will always be controversial.  The nature of our Court process is such that at least two alternative opinions are always put forward.  Without disagreement there would be no need for an impartial party to make a judgment.  It is as it always has been.

Is Intention Definitive?

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When I was a child and my parents did something I didn’t like and I complained, my father would often retort by saying “you should have picked your parents more carefully”.  His humor was not lost on me.  Although as I grew up I came to realize my parental good fortune, it wasn’t until much later that I came to appreciate and understand the legal obligations of being a parent.

Massachusetts law obligates parents to support their children.  On March 6, 2012, the Appellate Court responded to a father’s appeal in which he challenged his obligation to pay child support and in so doing they affirmed the lower court’s decision obligating the father to pay support. 

The facts of the case are not typical; in fact they evolve from the intersection between medical technology and human emotion.   The children in issue are twin daughters born to the father during the course of his marriage, albeit a marriage in the midst of dissolution.  They were born through in vitro fertilization (IVF) using donor sperm and donor eggs, and the father challenged his child support obligations claiming that his consent to his wife’s IVF procedure was consent to the procedure and not his consent to become a parent.  However the Court noted that for purposes of the Massachusetts artificial insemination statute, simple consent to the procedure is enough to confer parental status. The father argued that he had been coerced and had given his consent under duress and that when he gave his consent he did so contingent upon his wife’s agreement that she would “not at any time ask or sue for any other financial obligation” (e.g. child support).  As Massachusetts law does not allow parents to negotiate away their children’s right to be supported, the father’s position was hollow.

In support of its reasoning the Court cited a New York case in which that Court stated that ‘if an unmarried man who biologically causes conception through sexual relations without the premeditated intent of birth is legally obligated to support a child, then the equivalent resulting birth of a child caused by the deliberate conduct of artificial insemination should receive the same treatment in the eyes of the law’.  The Court went on to equate the volitional act of sexual intercourse with the volitional act of providing a signature to consent to the artificial insemination or embryo implantation.  In both instances, the intent of the putative father toward the parental status plays no role.  His volitional actions resulted in the creation of a child, and the law will attach parental responsibilities as a result.

As under Massachusetts law “Every person is responsible for the support of his child born out of wedlock…” and as artificial insemination or IVF has no purpose except to create a child, the intent of the husband that a child will be created strongly supports parental responsibility.

The Massachusetts Appellate Court has spoken and in doing so made it abundantly clear that although a male may have no belief at all that his actions will result in the creation of a child, in cases of unintentional pregnancy, whether through sexual intercourse or IVF, the male participant will be held responsible for child support.

To Be or Not To Be

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As Americans and more particularly as New Englanders, we are rugged individualists.  We hold sacrosanct the rights of individuals.  I say this as a backdrop to the recent Appeals Court decision captioned Guardianship of Mary Moe.

At thirty-two years old, Moe is pregnant, although it is unclear how long she has been pregnant and mentally ill, suffering from schizophrenia and/or schizoaffective disorder and bipolar mood disorder.  She has been pregnant twice before.  Her first pregnancy ended in an abortion and her second pregnancy resulted in her giving birth to a boy who is now in the custody of her parents.  This case resulted from The Department of Mental Health’s having filed a petition seeking to have Moe’s parents appointed as temporary guardians for Moe for the purpose of consenting to an abortion. 

The Judge found Moe to be  incompetent to make a decision as to whether or not she should have an abortion and appointed a guardian ad litem (GAL) to investigate the issue of substituted judgment, a method used by the Court to determine what an incompetent individual would do if in fact he or she were competent.  Unlike the “best interests” standard used by the Court when a GAL conducts an evaluation concerning children’s custody, Moe is an adult presumed to have an evolved belief system that if she were competent would allow her to make a reasoned decision.  Despite the Court having ordered the GAL report to assess what Moe’s decision would be if she were competent, the Appeals Court found that the judge disregarded the essence of the GAL report. In a case of substituted judgment, the Court’s world view, public policy, and family and societal ramifications are not what the Court is to decide.  In utilizing substituted judgment, the Court does not decide what is necessarily the best decision but rather what decision would be made by the incompetent person if he or she were competent.   In a previous 1979 decision, Guardianship of Roe, the Court stated “In short, if an individual would, if competent, make an unwise or foolish decision, the judge must respect that decision as long as he would accept (or be bound to accept) the same decision if made by a competent individual in the same circumstances.” 

In this case, not only did the judge order Moe to have an abortion but she also ordered that Moe be sterilized.  The Appeals Court found that the portion of the judge’s order requiring sterilization  seemed to have been produced “out of thin air”.  Although in former cases the Supreme Judicial Court has found that a guardian may seek permission for sterilization of a mentally incompetent person, they must do so with proper constitutional safeguards.  In essence the Court has ruled that incompetent individuals have the same right as competent individuals to choose or not to choose sterilization.  However, it is imperative that in making a decision constitutional rights are protected and the doctrine of substituted judgment is applied.

 The Court has found over and again in a long line of cases that the right to reproduce and the decision whether or not to bear or beget a child is at the very heart of the constitutionally protected right to privacy and individuals, married or single, are to be free from unwarranted governmental intrusion into matters so fundamental.

Are you my mother?

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Unlike the childhood story in which a baby bird searches to find out who her mother is, the Massachusetts Appeals Court had no trouble determing Angelica Ramirez is the legal parent of a child born to her wife, Gabriella Della Corte, during the course of their marriage. 

Despite the fact that the parties’ child was conceived through artificial insemination of Gabriella and had no biological connection to Angelica, Gabriella and Angelica were married to each other at the time of their child’s birth and Angelica had been supportive of the artificial insemination process of Gabriella.  In supporting its’ decision, the Court cited Masschusetts law which says that “any child born to a married woman as a result of artifiical insemination with the consent of her husband, shall be considered the legitimate child of the mother and such husband.”  In this instance, the Court interpreted “husband” to include same-sex couples and concluded that same-sex married partners are similarly situated to heterosexual couples in these circumstances.  The Court concluded further that there was no need for Angelica to adopt the parties’ child to legitmize their parent/child relationship.

In my conversation with Angelica’s attorney, Honora Kaplan, she told me that to her the most important aspect of this case is that a child born in a lesbian marriage is considered the legitimate child of both parents, that both parents are “legal” parents,  and that a second parent adoption is not necessary or required.  She stated further that this decision by the Appeals Court is a natural extension of the 2003 Goodridge decision, specifically stating that statutes referring to husband and wife must be read as gender-neutral.

Nature vs. Nurture- an age old dilemma

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On February 1, 2012, the Massachusetts Appeals Court affirmed a lower court decision granting custody of a child to the husband of the child’s deceased mother and not to his biological father.

The Court found that consideration of what is in the child’s best interests…weighs more heavily than the genetic link between parent and child.  The facts in this case were complicated by the fact that since his birth the now nine year old boy, Samuel, had been living with his mother, her husband and their now thirteen year old son, Frederick.  The judge found that “they play sports together, walk to school together, and do their homework together.”  Prior to the mother’s death, Samuel’s biological father had never challenged Samuel’s paternity and Samuel identified the husband as “daddy”.  The Court also found that since the mother’s death, the husband had assumed all parenting of both Samuel and Frederick and that the boys enjoy a strong brotherly bond. 

In support of its reasoning the Court stated that “Being an occasional caregiver is far different from providing the daily necessities of life to Samuel, encouraging his loving relationships with family members, and providing and supporting schooling, sports, and other activities that are the hallmarks of a healthy upbringing.  The husband, not the father, is the one who has done all of that.”

Divorce : The Importance of Marriage for Same Sex Couples

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Same Sex Divorce adjudged to be Long-Term Marriage 

When my client learned what the decision of the trial court had been in his divorce, he said  “what a relief!”  He then went on to say that throughout his divorce process, many of his friends had asked him if he wasn’t now sorry that he’d ever gotten married.  He told me that he had told them that he maintained his belief that marriage had been right for.  However, this decision now confirmed his belief that along with the right to marry had come the protections of divorce.  Although having lived with his partner for twelve years prior to their having married and never having anticipated they would be divorcing five years later, he was elated to now have the strength of the law behind him when his marriage did in fact end in divorce.

The Massachusetts’ trial court ruled in his divorce that although the parties were married for only five years, they had lived together like a married couple for seventeen years.  Unlike in a heterosexual marriage, wherein the parties would have had the option to marry seventeen years ago, the individuals in this case did not have that option.  In light of that fact, the court found that the parties had been in a long-term marriage and consequently the asset division and other relevant findings followed the logic of that initial finding.  The marital asset division and alimony both stood to have very different outcomes had the marriage been ruled to be a short-term marriage or even a marriage of moderate length. 

 

When I proposed the argument of a long-term marriage for this case, it was a novel approach and seemed like a long shot.  However, the argument was put forward and the Court found that this married couple both deserved the protections of and carried the obligations of a long-term marriage.  

In light of the fact that the federal tax code does not comport with the Massachusetts tax code, it is also important to note that the court paid attention to and made relevant findings taking into account any tax penalties that would occur as a result of those discrepancies. 

 

Massachusetts Alimony Reform Bill Update

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The Massachusetts Alimony Reform Bill is currently on Governor Patrick’s desk awaiting his action. 

He may sign the bill into law, allow it to become law without signing it (if the governor holds the bill until the 29th of September it will become law without his signature), veto it, or return it to the legislature with recommended changes. 

The Reform Bill has been scrutinized and debated from a variety of constituencies and unlike many times when “too many cooks spoil the broth”, it seems to me that this bill, although not perfect, goes a very long way toward creating clarity and equity for both spouses, payor and  recipient.