DISTRIBUTION OF MARITAL ASSETS
By:  Attorney Jeni Landers, Esquire

Disclaimer:  This post is meant to give you some general information about divorce in Massachusetts.  It is NOT all inclusive and is NOT meant to be a step-by-step guide.  The laws on divorce, custody, support, alimony, and property division are complex and you should retain counsel if possible.  By providing you this information I am not in any way undertaking representation of you, creating an attorney-client relationship with you, providing you with specific advice on your situation, or guaranteeing you any particular result in your case. You may not rely on nor cite this blog post in any court pleadings.

In Massachusetts, marital assets are subject to equitable distribution. If you are not able to come to an agreement with your spouse as to the division of your marital estate, the court will decide for you after trial or hearing.

Equitable does not mean “equal” or 50/50.  The court will use its discretion to divide up the marital assets based on a list of factors set out in Massachusetts Law (MGL C. 208 Sec. 34). The court “shall consider thelength of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties, the opportunity of each for future acquisition of capital assets and income, and the amount and duration of alimony, if any, ... In fixing the nature and value of the property to be so assigned, the court shall also consider the present and future needs of the dependent children of the marriage. The court may also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit.”

You might first ask, what are marital assets?  Although certain property might be excluded from the marital estate by a pre-nuptial agreement, almost all property acquired during the marriage or commingled with marital assets can be subject to the equitable distribution.  Sometimes in short term marriages the court may exclude property brought into the marriage by one party.  And in long term marriages one party might argue that he/she is entitled to credit for the property he/she brought in.  Neither are guaranteed, however.  The court, upon reviewing the factors, has wide discretion to include or exclude property and how to divide it.  Assets may include real estate, personal property, vehicles, bank accounts, retirement accounts, investments, collectibles, antiques, businesses or business assets owned by either party, and anything else of value.  Don’t forget that debts are also divided!

Just because your name is on an account, such as an IRA or 401K, or because the deposits to that account all came from your paycheck, does not mean this asset is yours alone. Both parties are seen as contributing to the overall marital estate.  For instance although your paycheck may have been used to pay for the house, your spouse probably still has a right to a share of that house because his/her paycheck was used to light the house, put gas in the car, or food on the table.  Likewise, just because your spouse is the only one with an IRA or 401K in his/her name does not necessarily mean you aren’t entitled to some retirement money.  Maybe the money you would have put into retirement was used to pay joint credit card bills; neither party should benefit from nor be damaged by that arrangement.  

If, as part of the distribution, a retirement account is to be divided, most institutions will require something called a Qualified Domestic Relations Order (QDRO – pronounced “quadro”) which will allow the account to be split into two or a portion to be transferred to another existing account without tax penalties.  If you are agreeing to split a retirement account, make sure your separation agreement takes into account which party will be responsible for obtaining and paying for the preparation of the QDRO which the court will sign.  Not all family law attorneys draft QDROs.

One of the most difficult assets to deal with is, of course, the marital home.  Whether it was brought into the marriage by one party or not, people have great sentimental attachments to their homes and the places they raise their children.  Unfortunately, it is often impossible to keep the marital home post-divorce, especially if it is heavily mortgaged and/or the parties do not have substantial income.  The fact of the matter is that you are one household becoming two and you must now find a way to financially support those two separate households.  There is a lot to consider:  Is there sufficient equity in the home to sell and share the proceeds so that both parties can start fresh?  Is one party financially capable of taking over the mortgage either now or 2, 3, 4 years from now?  Can one party continue to the pay the mortgage and rent/mortgage somewhere else at least until the kids are all out of the house?  There is no magic answer, no black and white.  With stricter lending regulations than in the past, it can be very difficult for one party to obtain a mortgage or refinance an existing mortgage on his/her income alone.  If you are considering divorce you should start looking at your financial situation, including the value of your home, the mortgage balance, and even consider speaking to a lender about options you might have.

Assets can also be difficult to value, such as a business which is solely owned and operated by one of the parties, something with great sentimental value but potentially little cash value, or something which can be valued different ways such as an antique car or a collection.  If you cannot agree on a value, you may both present witnesses and evidence at trial as to the value.

As noted above, if you cannot divide your assets (and debts!) in a separation agreement, you will need to present evidence of both to the judge and let him/her analyze the factors and order a distribution.


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Jeni A. Landers, Esquire
Wynn & Wynn, P.C.
300  Barnstable Rd.
Hyannis, MA 02601
508-775-3665
Fax 508-775-1244
www.wynnandwynn.com

By:  Attorney Jeni Landers, Esquire

Disclaimer:  This post is meant to give you some general information about child support in Massachusetts.  It is NOT all inclusive and is NOT meant to be a step-by-step guide.  The laws on divorce, custody, support, alimony, and property division are complex and you should retain counsel if possible.  By providing you this information I am not in any way undertaking representation of you, creating an attorney-client relationship with you, providing you with specific advice on your situation, or guaranteeing you any particular result in your case. You may not rely on nor cite this blog post in any court pleadings.

In Massachusetts, either parent can be ordered to pay child support.  Usually, if one parent has primary physical custody (the custodial parent), the non-custodial parent is ordered to pay the custodial parent. Sometimes, though, parents share physical custody and one parent is still ordered to pay based on a disparity in income. If the parents were married, the support order will be part of the divorce proceedings. If the parents were not married, either parent can file a complaint to establish paternity, custody, child support, and parenting time.

The actual amount of child support is calculated using guidelines and a calculator created by the Massachusetts Department of Revenue (DOR).  You can either use the worksheet from DOR or use the online calculator.  http://www.mass.gov/dor/child-support/guidelines.html The basic information that goes into the calculator is both parties’ gross (that’s before tax and other deductions or expenses) income, health care costs paid by either party, child care costs paid by either party, and the number of children. The amount calculated using that formula is then known as the “guidelines” amount and is typically the amount that a party is ordered to pay.

In some cases, there are reasons for deviating from the guidelines.  When entering into a Separation Agreement (as explained in my June 2014 post) the parties can agree to deviate from the guidelines (either up or down) and put their reasoning and the agreed upon amount in the Agreement which they sign and are then bound by.  When parties cannot agree on the amount and put the issue before a judge, the judge can order either the guidelines amount or a deviation from it if the judge feels the situation warrants.  The guidelines do not apply if the payor’s income exceeds $250,000.00 annually.  The minimum support order in Massachusetts for a payor claiming zero income is $80.00 a month.

Child support can and should be modified when either party experiences a material change in circumstance such as job loss or change, substantial loss or gain in income, disability status, etc.  Complaints for Modification are available online (http://barnstablecountypfc.com/index.htm) and at the clerk’s office.  If you are a recipient of child support and the payor is behind, you may file a Complaint for Contempt which is also available online or in the clerk’s office.  Both modifications and contempts require hearings where both parties may testify and present evidence in addition to the court required financial statement.

Child support can be paid in a variety of manners.  Some people write checks to the other party or arrange for direct deposit into the other’s account.  If you choose to pay or receive child support in cash, make sure both parties sign a receipt of some sort in case there is disagreement later.  The Department of Revenue can also collect and disburse child support.  If you wish to have DOR handle the money, sign up to be a DOR “customer” and they can deduct support directly from the paycheck of the payor and distribute it to the recipient.  http://www.mass.gov/dor/child-support/apply-for-services/ Some advantages of using DOR are that they keep detailed records of payments made, they can make additional deductions from paychecks to cover arrearages, request court modifications or orders, and they can take enforcement action for non-payment.

Child support calculation can be complicated by factors such as disability payments, unemployment, government assistance program payments, self-employment, seasonal employment, and support orders for other children.  Child support is based on income essentially, and is not based on parenting time (fka visitation); one may not be exchanged or withheld for the other.  The recipient is expected to use the child support for its intended purpose of housing, feeding, clothing, and otherwise caring for the child, but is not required to submit receipts or statements unless otherwise ordered or agreed to.  Child support generally ends when the child is emancipated which can mean, among other things, that the child turns 18 and is not a full time student, gets married, or joins the military. 

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Jeni A. Landers, Esquire
Wynn & Wynn, P.C.
300  Barnstable Rd.
Hyannis, MA 02601
508-775-3665
Fax 508-775-1244
www.wynnandwynn.com

By:  Attorney Jeni Landers, Esquire

Although I do help clients during some very happy moments in their lives such as purchasing a home or starting a new business, much of my work is of course helping people get through very difficult times such as divorce, injury, and deaths of family members.  Sometimes just having information and getting a sense of where they stand can help people feel stronger and certainly more prepared to take the next steps.

Disclaimer:  This post is meant to give you some general information about the divorce process in Massachusetts.  It is NOT all inclusive and is NOT meant to be a step-by-step guide for a DIY divorce.  The laws on divorce, custody, alimony, and property division are complex and you should retain counsel if possible.  By providing you this information I am not in any way undertaking representation of you, creating an attorney-client relationship with you, providing you with specific advice on your situation, or guaranteeing you any particular result in a divorce action. You may not rely on nor cite this blog post in any action for divorce.

Divorce actions come in all shapes and sizes and the first thing to remember is that there’s no “winning” in a divorce.  Divorces are handled in the Probate and Family Court here in Massachusetts and generally you would file for divorce in the county in which you live.  A divorce action is meant to resolve all the issues between the parties including but not limited to child custody (legal and physical) and support, parenting time (aka visitation), alimony, asset and debt division, health insurance, life insurance, and taxes.  When making decisions that affect children, the court using the “best interest of the child” standard which is extremely fact specific and may create what appears to be opposite results sometimes; each case is different.  The standard for property division is “equitable distribution.”  Remember, equitable doesn’t mean EQUAL.  The distribution is fact specific and based on multiple factors to be discussed another day.

There are basically two ways to get divorced in Massachusetts.  The first is referred to as a 1A (Mass General Laws c. 208, § 1 A) or “uncontested” divorce.  In an uncontested divorce the parties file a joint petition for divorce and a “Separation Agreement” that they have negotiated and drafted either themselves or with help from an attorney or mediator.  If there are minor children involved, each party must also attend a parenting class and present the certificate of completion to the court.  The court will also require additional documents including but not limited to a financial statement completed by each party (under oath), a certified copy of the marriage certificate, and affidavits from both parties that the marriage is “irretrievably broken” and cannot be fixed. 

The Separation Agreement should resolve all issues between the parties including custody, support, property division, etc.  Once the Court has all the required documents, a hearing will be scheduled. Both parties must appear (with or without counsel) unless a party files an affidavit in lieu of appearance. At that hearing the parties are sworn in, the Judge asks each party questions about the Separation Agreement and the financial statements, and if there are no outstanding issues or problems with the Agreement, the Judge orders the divorce.  Although this is meant to be a “final” outcome, decisions relating to children (and possibly other issues depending on how the agreement is drafted) are modifiable by the court upon the filing of a Complaint for Modification by either party in the future.

The other type of divorce is a 1B or “contested” divorce.  This type of divorce action resembles traditional litigation.  One party files a petition for divorce which can be based on a variety of grounds, including the very general “irretrievable breakdown.”  That party then becomes the Plaintiff and serves a summons and copy of the petition (or “Complaint”) on the other party.  The second party becomes known as the Defendant and must file an “Answer” to that Complaint.  Unless one or both parties file motions for temporary orders (such as asking for a certain custody arrangement pending the trial), the first time the parties go to court is the Pretrial Conference.  Prior to that conference, the parties must, among other things, exchange certain financial documentation, complete their financial statements, meet (with or without counsel) to try to resolve the issues, and draft Pretrial Memorandum to be submitted to the court. At the Pretrial Conference the Judge will listen to the parties (or their attorneys) and usually then schedule the trial.  Sometimes the case will need another Pretrial Conference.  And occasionally the Judge hears enough (in cases with limited issues) to decide the issues and order the divorce that day.

A divorce trial is like any other trial and involves substantial preparation, the calling of witnesses to testify, the submission of exhibits and other evidence to the court, and opening and closing statements.  Some people represent themselves, but it can be very difficult to do so since “pro se” (self-representing) parties are still expected to follow the rules of evidence and procedure.  After the trial the Judge will issue a decision on all of the issues including custody, support, property division, etc.  As with a 1A divorce, decisions made by the Judge that affect children are later modifiable based on a change in circumstance.

To further confuse matters, sometimes you start working on a separation agreement with the hopes of filing a 1A/uncontested divorce, but negotiations break down and you end up heading to a trial.  On the other hand, sometimes one party files a 1B/contested divorce and it looks like you’re headed for a trial, but you’re able to negotiate an agreement on your own or through your attorneys and you can present that agreement to the court and avoid a trial.

What I’ve just described are typical scenarios, but cases often take different and more complicated directions based on the issues.  Most days in Barnstable Probate Court there is a “Lawyer of the Day” who can provide you with free, limited advice.  If neither party has an attorney, the Judge will most likely send the parties to speak with someone in Family Services/Probation to see if an agreement can be reached on all or some of the issues.  There is also a law library in Barnstable District Court and the librarians can direct you to useful information on divorce.

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Jeni A. Landers, Esquire
Wynn & Wynn, P.C.
300  Barnstable Rd.
Hyannis, MA 02601
508-775-3665
Fax 508-775-1244
www.wynnandwynn.com

By: Gary M. DellaPosta, CPA

If you are considering divorce, it is vital to plan for the dissolution of the financial partnership in your marriage. Such dissolution involves dividing financial assets accumulated during the marriage. Further, if children are involved, future financial support for the custodial parent must be planned for.

While it may not be at the top of your to-do list, taking time to prepare financially during divorce pays off in the long run. Here are some steps you can take to get started.

Take Stock Of Your Situation

Assessing your financial situation helps you in two ways:

• It will provide you with preliminary information for an eventual division of the property.
• It will help you to plan how debts incurred during the marriage are to be paid off. Although the best way to deal with joint debt (such as credit card debt) is to pay it off before the divorce, this strategy is often impossible so compiling a list of your debts will help you to come to some agreement as to how they will be paid off.

To take stock of your situation start by preparing an inventory of your financial assets:

1. • The current balance in all bank accounts;
   • The value of any brokerage accounts;
   • The value of investments, including any IRAs;
   • Your residence(s);
   • Your autos; and
   • Your valuable antiques, jewelry, luxury items, collections, and furnishings.
2. Make sure you have copies of the past two or three years' tax returns. These will come in handy later.
3. Make sure you know the exact amounts of salary and other income earned by both yourself and your spouse.
4. Find the papers relating to insurance-life, health, auto, and homeowner's-and pension or other retirement benefits.
5. List all debts you both owe, separately or jointly. Include auto loans, mortgage, credit card debt, and any other liabilities.

Tip: If you are a spouse who has not worked outside the home lately, be sure to open a separate bank account in your own name and apply for a credit card in your own name. These measures will help you to establish credit after the divorce.

Related Guide: For a system that makes it easy to organize and locate your records, please see the Financial Guide:DOCUMENT LOCATOR SYSTEM: A Handy Aid For Keeping Track Of Your Records


Estimate Your Post-Divorce Living Expenses

Figure out how much it will cost you to live after the divorce. This is especially important for the spouse who is planning to remain in the family home with the children; it may be determined that the estimated living expenses are not manageable.

To estimate these expenses, add up all of your monthly debts and living expenses, including rent or mortgage. Then total your after-tax monthly income from all sources. The amount left over is your disposable income.

Related Guide: Please see the Financial Guide: BUDGETING: How To Prepare A Workable Plan

Cancel All Joint Accounts

It is important to cancel all joint accounts immediately once you know you are going to obtain a divorce because creditors have the right to seek payment from either party on a joint credit card or other credit account, no matter which party actually incurred the bill. If you allow your name to remain on joint accounts with your ex-spouse, you are also responsible for the bills.

Your divorce agreement may specify which one of you pays the bills. However, as far as the creditor is concerned both you and your spouse remain responsible if joint accounts remain open. The creditor will try to collect the bill from whoever it thinks may be able to pay while at the same time reporting the late payments to credit bureaus under both names. Your credit history could be damaged because of the co-signer's irresponsibility.

Some credit contracts require that you immediately pay the outstanding balance in full if you close an account. If this is the case, then try to get the creditor to have the balance transferred to separate accounts.


If Your Spouse's Poor Credit Affects You

If your spouse's poor credit hurts your credit record, you may be able to separate yourself from the spouse's information on your credit report. The Equal Credit Opportunity Act requires a creditor to take into account any information showing that the credit history being considered does not reflect your own. If for instance, you can show that accounts you shared with your spouse were opened by him or her before your marriage, and that he or she paid the bills, you may be able to convince the creditor that the harmful information relates to your spouse's credit record, not yours.

In practice, it is difficult to prove that the credit history under consideration does not reflect your own, and you may have to be persistent.


For Women: Maintain Your Own Credit Before You Need It

If a woman divorces, and changes her name on an account, lenders may review her application or credit file to see whether her qualifications alone meet their credit standards. They may ask her to reapply even though the account remains open.

Maintaining credit in your own name is the best way to avoid this inconvenience. It also makes it easier to preserve your own, separate, credit history. Further, should you need credit in an emergency it will be available when you need it.

Do not use only your husband's name (for example, Mrs. John Wilson) for credit purposes.

Tip: Check your credit report if you have not done so recently. Make sure the accounts you share are reported in your name as well as your spouse's name. If not, and you want to use your spouse's credit history to build your own credit, write to the creditor and request that the account be reported in both names.

Also, carefully review your credit report to determine whether there is any inaccurate or incomplete information. If there is, write to the credit bureau and ask them to correct it. The credit bureau must confirm the data within a reasonable time period, and let you know when they have corrected the mistake.

Related Guide: Please see the Financial Guide: CREDIT REPORTS: What You Should Know-And Do-About Yours.

If you have been sharing your husband's accounts, building a credit history in your name should be fairly easy. Call a major credit bureau and request a copy of your report. Contact the issuers of the cards you share with your husband and ask them to report the accounts in your name as well.

If you used the accounts, but never co-signed for them, ask to be added on as jointly liable for some of the major credit cards. Once you have several accounts listed as references on your credit record, apply for a department store card, or even a Visa or MasterCard, in your own name.

If you held accounts jointly and they were opened before 1977 (in which case they may have been reported only in your husband's name), point them out and tell the creditor to consider them as your credit history also. The creditor cannot require your spouse's or former spouse's signature to access his credit file if you are using his information to qualify for credit.

Tip: If you do not have a credit history, a secured credit card is a fairly quick and easy way to get a major credit card. Secured credit cards look and are used like regular Visa or MasterCard's, but they require a savings or money market deposit of several hundred dollars that the lender holds in case you default. In most cases, the creditor will report your payment record on these accounts just like a regular bankcard, allowing you to build a good credit record if you pay your bills promptly.


Consider the Legal Issues

The best way to plan for the legal issues involved in a divorce including child custody, division of property, and alimony or support payments is to come to an agreement with your spouse. If you can reach an agreement, the time and money you will have to expend in coming up with a legal solution--either one worked out between the two attorneys or one worked out by a court--will be drastically reduced.

Here are some general tips for handling the legal aspects of a divorce:

• Get your own attorney if there are significant issues to deal with such as child custody, alimony, or significant assets.
• The best way to find a good matrimonial attorney is to ask for referrals or contact the American Academy of Matrimonial Lawyers (see the last section of this guide for contact information).
• Make sure the divorce decree or agreement covers all types of insurance coverage including life, health, and auto.
• Be sure to change the beneficiaries on life insurance policies, IRA accounts, 401(k) plans, other retirement accounts, and pension plans.
• Don't forget to update your will.

Tip: Those who have trouble arriving at an equitable agreement--and who do not require the services of an attorney--might consider the use of a divorce mediator. Ask friends, relatives, and other professionals for recommendations or contact the Association for Conflict Resolution (see the last section of this guide for contact information). You can also look in the phone book or classifieds under "Divorce Assistance" or "Lawyer Alternatives."


Division of Property

The laws governing division of property between ex-spouses vary from state to state. Further, matrimonial judges have a great deal of latitude in applying those laws.

Here is a list of items you should be sure to take care of, regardless of whether you are represented by an attorney.

1. Understand how your state's laws on property division work.
2. If you owned property separately during the marriage, be sure you have the papers to prove that it has been kept separate.
3. Be ready to document any non-financial contributions to the marriage such as support of a spouse while he or she attended school or non-financial contributions to his or her financial success.
4. If you need alimony or child support, be ready to document your need for it.
5. If you have not worked outside the home during the marriage, consider having the divorce decree provide for money for you to be trained or educated.

How To Prepare Financially For Re-Marriage When considering remarriage, it is important to plan for the following:

• Whether property acquired before the marriage will be held jointly
• How to provide for children from a previous marriage
• Whether a prenuptial agreement is necessary to accomplish goals related to either of these issues

If either spouse has significant assets, it will be necessary to consult an attorney.

As for the estate planning aspects of providing for children from a previous marriage, trusts and/or life insurance are the vehicles most often used to do this.

Tip: Be sure to update your will before you remarry to ensure that your assets will be divided among your heirs after your death in the manner and proportions you desire.

Government and Non-Profit Agencies

• American Academy of Matrimonial Lawyers (AAML)
  150 North Michigan Ave., Suite 1420
  Chicago, IL 60601
  Tel. 312-263-6477
  www.aaml.org
  
  
  
• Association for Conflict Resolution (ACR)
  12100 Sunset Hills Rd., Suite #130 
  Reston, VA 20190 
  Tel. 703.234.4141 
  www.acrnet.org


• National Foundation for Credit Counseling (NFCC)
  Tel. 800-388-CCCS (2227) 
  www.nfcc.org 
  


• Ex-Partners of Servicemen/women for Equality (EX-POSE)
  P.O. Box 11191
  Alexandria, VA 22312
  Tel. 703-255-2917
  www.ex-pose.org
  This non-profit organization provides information to divorcing or separating spouses of military service people.

Most parents recognize their child is going through a hard time in divorce and try to ease the trouble as much as they can.  I have been involved in far too many cases, however, where both parents are acting like they are on the high road.  In other words, they are “less” at fault and know “better” about the needs of the child. 
Generally, this does not work for a child.  
 
When parents are in conflict about the child’s needs, the child is usually best served by a third party stepping in to make suggestions, with the child’s best interest at heart.  Whether the parents think they are hiding their conflict from the child or not, the child is the subject of the conflict, which is never a good thing.
 
This third party could be a therapist who specializes in marriage and divorce.  It could be a guardian ad litem, and rarely, but still possible, it could be an attorney for the child.

If you are going to look for a therapist, like myself, to assist with the process, the therapist should most definitely start with both parents, if possible together.  One parent or the other should not be aligned with the therapist.  That does not serve the child’s best interest.
 
If you are considering seeking help from a therapist for your child in a custody or divorce case, please familiarize yourself with this contract.  The components of this contract should be the guidelines of the
therapy.  http://www.tracylamperti.com/Custody-Cases.pdf
 
Please consider getting support if you are going through a major separation, married or not married, especially if you have children.  Family and friends can be very helpful, but even just a few sessions with a specialist can make a big difference.

On many occasions, while sitting in the court room waiting to testify, I watch couple after couple approach the bench for the finalization of their divorce.  The Honorable Justices Scandurra and Ryley sit at that bench throughout each year, reciting the final
order of divorce.  Each person is asked, “Do you believe your marriage is irreconcilable?” What a depressing seat to sit in as the judge who legalizes the end of the “I do!”
 
The last thing that these judges want to deal with is disagreements from divorcing adults.  For this reason, almost all cases are sent to the Probation Office first (at Barnstable Probate and Family Court).  Almost all cases are required to participate in some level of mediation prior to going before the Judge.
 
It is to your benefit, emotionally and financially, for the two of you to agree on as many things as possible before going to court.  The point is, both sides usually feel they are on the “high road.”  Many couples expect to go through the court process and have it be determined that either they are “right” or that they have been “wronged” and the court process will reveal that “fact.”
 
At court, there is no “high road.”  Frankly, the court really doesn’t have the time or interest in hearing anything about what happened between the two of you or how either of you see it.  They want the financials and the parenting agreement (when there are children involved).
 
And the BEST mediators will always acknowledge, without hearing many details at all, that “There is ALWAYS more to the story!” and maybe aim you toward a therapist, but leave it out of mediation.  In fact, this was illustrated so well a few years ago.  I was providing counseling to a man going through a divorce.  He and his soon to be x-wife were in a mediation session.  The facts THAT HE REQUESTED were laid out on the table. The woman cleared her throat and said, “Mr. ------, there is way more to the story….” And as she began to continue, he interrupted her and said, “Mrs. ------, there always is.  Now let’s move on.” 
 
You may not agree, and some would contest this mediator by walking out and presenting to the court that another should be sought.  But this mediator was doing his job.
 
Now, let’s say that you have concerns about your child in the care of your soon to be “X”.  What are your
options?
 
If there is an issue of domestic violence, you should be aware that you can seek assistance from Independence House, or another Domestic Violence center in your area.  Because the next piece of
information that I will give, is that you need to be able to be open and honest during the court process if you have concerns.  If you don’t feel safe being open and honest, you need to seek counseling from a professional for help in making the next step, and most importantly, ensuring the safety of the child, to your best ability.
 
Note:  Any of these examples could read, “My  wife….”  But I have phrased them all “husband” since this is a “mommy” blog. There are many women making very poor decisions where their children are concerned and many diligent fathers trying to protect these children.

 Example
#1 – A large part of the break up was because of my husband’s drinking.  He’s a big guy and believes he is fine to drive after having 5 or 6 beers.  I’m not sure if he would drive with our 8 year old in the car.
 
Example
#2 – My husband is addicted to porn.  He is up till all hours involved in porn.  On overnights, our 3 year old sleeps in the same bed with him.
 
Example
#3 – My husband just doesn’t pay attention.  He goes out to the garage and works on his car and leaves our 4 year old in the house watching TV.
 
Example
#4 – My husband is abusing pain meds.  He is a really good dad but when he “needs” his pain pills he will put
our child in the car and drive an hour to pick them up, probably from some unsavory location or person.
 
Example
#5 – I heard a rumor that my husband is dating a woman who sexually abused a younger boy.

 I could go on all day with examples that have presented in my office. Some are dreadfully frightening and some are just really  inappropriate.  If there are instances that you feel could put your child at risk, you need to seek professional counsel.  This might be in the form of a good family/divorce attorney or a  psychotherapist. It may require a consultation with The Department of Children and Families, which you can do by calling anonymously and asking to talk to a “screener.”
 
You will need to put your concerns in writing as part of a court document; state facts as facts and concerns as concerns.  Always be completely honest about the facts or concerns. Try to determine what you are going to request of the court to be entered into an order and be as clear as possible so the court knows just what you are asking for.  Seek professional support if you aren’t sure if your concerns are valid or you aren’t sure what  to do.  
 
It is a parent’s job to protect their child.  If you have concerns, you follow up.  There are so many things a divorcing parent has to give up. Hopes, dreams, partnership, money, maybe ideals about how your child will be raised when they are not with you, even giving up your child for brief periods of time (when they are visiting the other parent.  Let your child’s safety be something that you will do all that you can to not give up.

http://barnstablecountypfc.com/Ten%20Suggestions.htm

Please consider getting support if you are going through a major separation, married or not married, especially if you have children.  Family and friends can be very helpful, but even just a few sessions with a specialist can make a big difference.

Tracy Lamperti, LMHC, BCETS

Breaking the News Navigating Separation and Divorce in the Best Interest of the Child
Part 3
by Tracy Lamperti, LMHC, BCETS

***This is part of the Navigating Separation and Divorce in the Best Interest of the Child Series

When there has been a lot of conflict, fighting or obvious tension, it can sometimes feel easier to tell children.  It is as if there is a “good reason” for separating (because of the fighting).  
 
But it wouldn’t be fair to say that there is ever an easier scenario for divorce, for parents or children.  When marital troubles have been concealed well by the adults, this presents a whole different scenario, one of shock and a kind of surreal feeling.

 Either way, it is very hard.

 It is best for both parents to be present when telling the child.  Agree on what you are going to say, who is going to be the spokesperson and what is going to be said ahead of time.

Speak to the child with their developmental level in mind, but no matter what stage, be sure to convey that divorce is completely the adults’ responsibility.  It is not the child’s fault.  Reassure the child that you both love them very much and nothing can change that.  A child can never do anything that would cause parents to break up.

 Give children enough information so that they won’t be saying to themself, “I don’t get it.  What are they saying?”  But also know that the child may not take in some of the details of what you are telling them and you may have to say things again.  It is even good to say, “This is hard for us to tell you.  It is a lot for all of us.  You might not hear everything all at once and that is ok.  We want you to ask us if you have questions.”

 If there are things that you cannot answer, explain that you will tell them just as soon as you can.  Some details you just might not know.  Some details are not appropriate at their developmental level.
        
Who will I live with?
       
Where will I go to school?
       
Will I move?

Where will each parent live?
       
WAIT! When is this going to happen????

What about Christmas morning?  
       
What about the winter ski trip we take every year?
        
Will I still get to see my  friends?

Will I have to go to a different school?

Do Grandma and Grandpa know?
       
Is this a secret??

Can I still do my favorite  activities?

Understand that the child now has a weight on their shoulders that wasn’t there before.  Even if there was a lot of conflict or tension from silent fighting, the child’s story had just started a new chapter.  Consider whether it is appropriate to share the information with the childcare provider or teacher.
 
Adults should be open to suggesting other adults to the child who know about the separation and are available to listen if they want to talk.  Tell the child, “Auntie Sarah and Uncle John know that mommy and daddy are going to live apart and if you want to talk about it with them, they will listen.” Make sure this person is a good listener and not one to interject a lot of commentary or negativity.
 
I often encounter cases where there is conflict about the logistics; visitation, where the child will primarily live, etc.  If you are unable to resolve these differences on your own, a mediator may become involved or the matter will end up in court.  If the child becomes aware of these conflicts, it is ok to tell the child that mommy and daddy are having a lot of trouble agreeing on some things, so a Judge, kind of like a referee or umpire will hear both of our sides and make a decision for us. 

 Please consider getting support if you are going through a major separation, married or not married, especially if you have children.  Family and friends can be very helpful, but even just a few sessions with a specialist can make a big difference.
 
Tracy Lamperti, LMHC, BCETS

Above All Else
Navigating Separation and Divorce in the Best Interest of the Child
Part 2

by Tracy Lamperti, LMHC, BCETS

***This is part of the Navigating Separation and Divorce in the Best Interest of the Child Series

Above all else, children have the right to be safe, physically, emotionally and developmentally.  If couples were able to navigate all of the details of separation and divorce effectively, a majority of these couples
would not need to separate. 
 
Emotions can run high (and very low) at this very difficult time. Even so, on the issues of safety, it is crucially important that parents be able to sit down in a calm space and with professional support if needed and
agree on some key points.

Even if divorce has already been finalized, these key point might be important to formally agree upon.
 
The following are merely suggestions of points to discuss.  Each person should identify the points that they feel are important.  It MAY seem unnecessary, but these points should be printed out and each parent should sign and date the final agreement.
 
This agreement is a good faith attempt to put your child first. It should be completed as early as a couple is realizing a separation is  going to occur and should not wait for a mediation or court process to take place, because not all professionals will include a document like this in the process.  But as stated, even if
you are well into the process, it isn’t too late.

Items to Consider

  (Father’s Name and Mother’s Name), parents of (your child(ren’s) name), agree to put our children first by
agreeing on the following;

 ·       We will not discuss the details of our problems with each other with or in front of our child(ren).

 ·       We will not question (cross-examine) our child(ren) about their time with the other parent.

 ·       We will inform the other parent about certain things during our time so that the other parent doesn’t feel like they have to cross examine the child(ren), for example; the child not feeling well, a disciplinary decision, spending time with someone who is a stranger to the other parent, logistics about sleeping arrangements, babysitters, etc…

·       We will communicate directly with each other (or an agreed upon family, friend or mediator) and not ask our child(ren) to relay messages for us.

 ·       We will not ask our child(ren) to keep a secret.  (THIS IS VERY IMPORTANT)

·       We will not ask our child(ren) to tell the other parent something that isn’t true.

 ·       We will listen attentively and lovingly to our child(ren) about their feelings, but not lead them to believe that they are more powerful than they actually are in being able to have their feelings change things like visitation schedules, etc.

(This next part needs careful consideration.  Your contract might not read like this.  It will depend on your beliefs and in part, the developmental stage of your child.)

 ·       We will give each other the chance to meet and approve or disapprove of any potential babysitters, including new girl/boyfriends.  For potential caretakers age 16 and older, a CORI (criminal records check) may be requested.  (You can inquire about how to do that at your local police department. I have been involved in a few cases where a new boyfriend was actually on the sexual offenders registry, but because the parent said, “He’s fine!” or “I trust him with the kids and I’m always around anyway”  the other parent went through a great deal of difficulty trying to bring the issue into the court.  Even still, it’s not a clear cut decision for the court.  However, a signed contract like this one makes it a clear cut decision.)

 ·       If or when either of us decide to date, we will introduce the boy/girlfriend gradually to our child(ren).

 ·       If or when either of us decide to have a boy/girlfriend stay overnight during our time with our child(ren), the child will not sleep in the same bed with us.  (This will need to be discussed and worded carefully depending on the developmental level of the child.  For a child who still comes into parent’s bed at night, this will need to be spelled out.)

These are just a few additional points, based on my experience with family court over the last 20 years. These points are not meant as legal advice, as I am not a lawyer.  The “lawyer-of-the-day” is a resource for free legal advice/direction.  Call ahead to see what days they are available and you will arrive and wait your turn.
 
1.      The child will not come to court with you, nor will your child have a say in the legal proceedings.

2.     A child’s voice MAY be conveyed through the court psychologist, however, this is very rare and if a child is seen by the Probate and Family Court Psychologist, it is likely that the parents will be also, and that the parents will be under a great deal of scrutiny.

3.     Only in the most extreme of cases, i.e. severe abuse or neglect allegations, a tragic death, EXTREME parental conflict, EXTREME appearance that one parent is alienating the other, etc. will the court POSSIBLY appoint a Guardian ad litem (GAL).  A GAL is a legal or mental health professional who is appointed by the judge to assist in sorting out the details of the case when a child’s needs are concerned. The only other circumstances in which a GAL would be appointed is a case in which the parents are required to pay for the GAL privately.  Even if paid for by one or both parents, the GAL is still, essentially, the Judge’s investigator, and not on the side of either parent.  Barnstable Probate and Family Court used to have one of the best
children’s advocacy services.  Children were at times appointed a lawyer and/or a GAL in cases where it
looked like one was needed.  The funding is no longer available for these services.

 4.     Especially since GAL’s are so rare these days, many lawyers of the day are directing parents to seek a letter from a counselor, such as myself, who will write a letter to be brought to court regarding the child. 
There are many ethical considerations for a therapist to take into account when asked to write such a letter.  A therapist who is qualified to work with divorce cases involving children can be very helpful.  However, seeking a therapist for a child for the purpose of getting a letter for court is not the proper use of therapy services.  It is not typically two parents asking for a therapist’s services for help with decisions at court, it is usually one parent.  As stated, there are many ethical issues involved and when seeking support from a therapist, parents need to be sure to research qualifications of the therapist carefully.

Please consider getting support if you are going through a major separation, married or not married, especially if you have children.  Family and friends can be very helpful, but even just a few sessions with a specialist can make a big difference.

Tracy Lamperti, LMHC, BCETS