LoDolce Family Law

                                           JUDGE SHOPPING

           In Massachusetts, a judge is assigned to hear a case such as a divorce or separation, according to when the case is docketed. When a case is filed with the Probate and Family Court, a docket number is assigned to each case as the case is filed at the courthouse. The cases are assigned numbers in sequence. If for example a courthouse has four judges, then each charge is assigned 25 numbers. Each judge is assigned a series of numbers so that a judge will hear all of the cases within sequence with the docket # having the last two numbers that fall between zero and twenty five. In Plymouth County for example, Judge Menno is assigned the numbers that fall between 45 and 69. Therefore a case in Plymouth County with a docket number with the last two digits as 60, will be assigned to Judge Menno and that case will only be heard by Judge Menno.

            Once a case is assigned a docket number with the last two digits falling between 45 and 69, every time that case is heard by a judge, that judge will be Judge Menno. In order to better serve the public, a judge needs a context within which he or she hears the case, therefore, every case is specifically assigned to one judge.  In the past, a case would simply be heard by whichever judge was sitting each day. It was found that there was no continuity for the litigants by using such a system and such a system also fostered judge shopping.  That is, if a litigant didn't like what he or she was hearing from one judge, then the litigant would select a day that another day that another judge would be sitting. The new system of assigning every case to a specific judge addresses this problem.

            Our present system requires the litigants and their attorneys to determine what day the assigned judge will hear a matter such as a motion, before selecting a court date. Some counties have each judge sit on a certain day of the week and hear certain cases on that day, for example Judge Menno hears motions on Tuesdays. It is incumbent upon whoever has a Judge Menno docket number, to select a Tuesday. The problem is further complicated when a County has two courthouses, such as in Plymouth County where there is one courthouse in Brockton, and another courthouse in Plymouth, because the judges then rotate between the two courthouses. For example, Judge Menno sits mostly in Brockton, and one week a month he sits in Plymouth.

            Even with all these complications, the system is better than that which was done in the past principally because the system that is in place, resolves the problem of judge shopping.  The litigants have no choice of judges and once a judge is assigned to a case then that judge always hears the case. 

A SAMPLE VISITATION SCHEDULE

Mid-Week:

            It is the intention of the parties that both parents will be integrally involved with the life of the child on a daily basis is possible.  However, the parties are cognizant of the realities of life, and have agreed that the Wife will move to the xxxxx area, but that additional moves for the child shall be discussed before such move so as not to remove the child unnecessarily from either party’s access and so that both parties may have input into the educational opportunities to which the child may avail himself in the town in which he lives and school system in which he is enrolled.

 When the child is in school:

 The Father shall have alternating weekend visitation with the children, every other Friday at 5:00 p.m. to Sunday at 5:00 p.m., unless there is a Monday holiday in which event, the Father will return the child on Monday at 5:00 P.M. with transportation to be shared equally by the parties. 

 During the week, Father shall have visitation with the minor child twice per week, on days to be agreed upon, from 5:00 P.M. to 8:00 P.M. with transportation to be provided by the Father.

 When the child is not in school:

 The Father shall have alternating weekend visitation with the children, every other Friday at 5:00 p.m. to Sunday at 5:00 p.m., unless there is a Monday holiday in which event, the Father will return the child on Monday at 5:00 P.M. with transportation to be shared equally by the parties.

 During the week, Father shall have over-night visitation with the minor child twice per week, for two consecutive days from 5:00 P.M. through the second day at 5:00 P.M. with transportation to be shared equally by the parties.   

 Vacations:

If Mother intends to be out of town, Father will be allowed custody of the minor children during the time that Mother is away.  Likewise, if Father intends to be out of town, the Mother shall be allowed custody of the minor children during the time that Father is away.

Each party shall have two (2) weeks uninterrupted summer vacation with the children during the year.  The Father shall notify the Mother of his vacation schedule by May 1st for the up and coming summer in Odd years.  The Mother shall notify the Father of her vacation scheduled by May 15^th for the up and coming summers in Odd years, taking time that the Father has not selected.  In even years, this arrangement shall be flip flopped.

Each week shall commence at 5:00 p.m. on a Friday through the second Sunday thereafter at 5:00 p.m.  During each of the scheduled vacations with the children, the vacationing parent shall both pick up and drop off the children.

 School Vacations:

February Vacation:                        Odd years with Father and Even years with Mother.

April Vacation:                                 Odd years with Mother and Even years with Father.

Each week shall commence at 5:00 p.m. on a Friday through the second Sunday thereafter at 5:00 p.m.  During each of the scheduled vacations with the children, the vacationing parent shall both pick up and drop off the children.

 Christmas Vacation:  Each party shall have one half of the Christmas school vacation, with the Mother having the first half in all Even years and the Father having the first half in all Odd years.  The first half shall commence at 12:00 noon on December 26th through 5:00 p.m. on December 29th; the second half shall commence at 5:00 p.m. on December 29th through New Year’s Day (January 1st) at 5:00 p.m.

 Easter:                                               Commences 4:00 p.m. on the Saturday before Easter through 5:00 p.m. Easter Sunday. 

                                                            Odd years with Mother and Even Years with Father.

Mother’s Day                                   The Children are always with Mother, commencing 10:00 a.m. on Mother’s Day.  If Mother’s Day falls on the Father’s weekend, this day shall not be made up on another weekend.  If the Father has visitation, he shall bring the children to the Mother’s home.

Father’s Day                                    The Children are always with Father commencing 10:00 a.m. on Father’s Day through 5:00 p.m. on Father’s Day.  If Father’s Day falls on Mother’s weekend, this day shall not be made up on another weekend.  If the Mother has visitation, she shall bring the children to the Father’s home, the Father shall return the children at 5:00 p.m.

Fourth of July:                                 Commences  9:00 a.m. on July 4th through 5:00 p.m. on July 5th.

                                                            Even years with the Father and Odd years with the Mother.

Halloween (evening):                    Commencing 4:00 p.m. to be returned home by 8:00 p.m. by the Father, or Mother if Halloween falls within Father’s visitation.

Even years with Mother; Odd years with Father.

Thanksgiving:                                 Commences 9:00 a.m. Thanksgiving Day through 5:00p.m. the Friday after Thanksgiving.

Odd years with Mother, Even years with Father.

Christmas:                                       Commences 12:00 noon on Christmas Eve, through 12:00 noon on Christmas Day.

                                                            Odd years with Father and Even years with Mother.   Christmas Day commencing 12:00 noon through December 26th at 12:00 noon.

                                                            Odd years with Mother and Even years with Father.

Additional 3-day weekends:

Whoever is scheduled to have the child on the Saturday/Sunday of these weekends shall keep the child on the Monday holiday as well, until 5:00 p.m.  However, if Father is working on the Monday holiday, he shall return the child by 5:00 p.m. on Sunday:

Miscellaneous:

 Child’s Birthdays:  The child’s birthday shall be spent with whichever parent has the child.  The other parent shall have the right to call the child on his birthday.

 Child’s Activities:  This Agreement and the visitation will supersede all the child’s activities unless the parties agree in advance to activities which may fall on the other parent’s weekend, in which event both parents will be obligated to take the child to such activities.

 Each parent shall have reasonable telephone access to the child during the other’s visitation periods.

 Alternating weekends shall continue after an interrupted holiday or vacation visit as if the holiday or vacation never occurred.

LITIGATION: THE TRADITIONAL PROCESS FOR DIVORCE

Litigation is a process where one or both parties (“litigants”) file a court complaint to give a judge the authority to resolve family disputes.  The Judge is either appointed by the Governor or an elected official who, after hearing each point of view, makes a decision.  If the hearing is for a limited portion of the dispute, then that hearing may result in what is referred to as a “temporary order.” While the hearing itself may only last for five minutes, the effects of the resulting order may be far reaching, determining such things as the amount of support to be paid, where the children will live, or even whether or not one litigant should be mandated to leave the home. Temporary orders often influence what a judge will ultimately issue as a final order. If the hearing or trial is scheduled for the entire matter, then both parties will have an opportunity to present their entire story or “case,” along with witnesses who may testify on a variety of matters such as the value of assets, the ability of a litigant to have custody of the children, or events that occurred during the marriage. 

Since the courts are typically understaffed and overbooked, many hours are frequently lost while litigants wait to be called. At any time during the wait for a hearing, a litigant has the right to pursue mediation or engage in settlement discussions. Litigation can be very expensive since many hours of preparation are required prior to a court hearing and family law attorneys are paid by the hour. Litigation is also stressful for the participants since the outcome is solely dependant upon the judge’s impressions gleaned from what is presented in a structured and often limited hearing.  The judge’s picture of the relationship of the parties is obtained from a small lens, and the judgment or decision often fails to resolve problems to the satisfaction of both litigants. In fact, a good decision is often said to be one in which both parties are somewhat unhappy. A judge has wide discretion and unless a decision is found to be seriously flawed by legal standards, it is typically not appealable. And with appeals, the process only becomes more expensive and time consuming with limited promise of success.

By litigating, parties grant a stranger the authority to make even the most basic decisions about their family.  Frequently, a divorce will start with litigation but will end by way of a negotiated settlement, either with or without mediation. Few family law disputes are resolved by a full trial.  However, even when a judge enters only one or two temporary orders prior to a matter settling, such orders have the ability to significantly limit the final outcome. Retaining control over the process from start to finish through alternative dispute resolution is optimal. Of course, in a case where the parties refuse to agree, litigation must continue to be available and there are those situations, where there is abuse for example, when litigation remains the only option.

THE ADVANTAGES OF A TRUTHFUL FINANCIAL STATEMENT

           The courts have a philosophy of open book discovery, which in short means that you need to fully disclose all of your finances and assets to the other side and to the court.  It is interesting that during the courtship phase of marriage, in a traditional relationship, the “he” often picks up the tab while the “she” often graciously accepts. During the dissolution of a marriage, that sentiment changes.  The reality is that the sooner everyone “fesses up” as to what they have, the sooner the case is in a position to settle and reach an end. 

           The participants in a divorce have had an intermingling of funds and assets to one degree or another. It may be that not every asset will be divided equally or even at all if the terms of a prenuptial agreement governs, but full disclosure is usually mandated just the same.

            Where there is lack of full disclosure, suspicion and distrust results. Consequently, suspicion and distrust lead to increased legal fees, because attorneys must “dig” to find assets. It is that very suspicion and distrust that gives rise to untold anger, not only in reaction to the exaggerated legal costs, but because parties feel that they may potentially be cheated out of what. in their estimation. is rightfully due. The unwillingness to be forthright fuels concerns about an unjust result.

            While the lack of disclosure altogether is an issue, the lack of speedy disclosure is equally as troublesome and can be as costly.  To receive information in piecemeal is frustrating to the waiting party. Providing current information in an open manner as quickly and as often as possible engenders good will and fuels the belief that the negotiations will be above board and honest.

HOW TO ORGANIZE DIVORCE RELATED DOCUMENTS

            We recommend that you maintain a 3-ring notebook containing four sections in order to organize all of the documentation, which we will be forwarding to you during the course of these proceedings.  The first section, Pleadings, will contain motions and complaints.  The second section, Financial, should include financial statements which we will be preparing before our first court appearance.  Judgments/Orders, the third section, will include any Orders entered by the court and any Agreements or Stipulations.  Finally, the fourth section, Correspondence, will include all letters we send to you, as well as copies of all other letters that we forward to you.  You should keep the most recent documents at the front of each section.  This notebook will assist you in keeping all documents in an organized fashion.

            You should request that your attorney copy you on all correspondences, financial documents and pleadings sent or received on your behalf so that you can better understand the litigation. Upon receipt, you should file these documents into your notebook.  This will reduce your legal fees, as you will have fewer questions for your lawyer.  When you do need to call your attorney, it is important to make a list ahead of time of the questions you have, so that the contact will be more meaningful and fruitful, again the net result will be that you will have a better understanding of what is going on, and will also be able to keep your legal fees under control.

             If you change attorneys, you can bring your notebook with you so that the prospective attorney can review what you have to assess the reasonableness of the switch, and better predict the cost of the litigation if you plan to make the change.  Organization, is clearly the key to a more successful outcome with more reasonable attorneys fees incurred to achieve that outcome.

WHAT YOU CAN REASONABLY EXPECT FROM YOUR ATTORNEY

In order to become an attorney, an individual needs to graduate from college, complete law school, and pass a bar examination specific to the state where he or she hopes to practice. Additionally, most states require attorneys to pass an ethical examination. The process is arduous and challenging.  Qualities and qualifications most important in choosing a divorce attorney are ethics, experience, and responsiveness to client's needs.  A person must be comfortable with his chosen counsel, believing that his or her attorney is not only able to meet his or her needs, but is also able to clearly explain the process while willing to take the time to answer questions along the way.

            At the end of the process, the attorney is licensed to dispense advice or speak on behalf of people to advance their position.  Family Law is a specific area, which requires an extensive knowledge of the law and demands patience.  There is a standing joke that the difference between a criminal litigant and divorce litigant is that the criminal litigant is on his or her best behavior during the process while the divorce client is on his or her worst. A good divorce lawyer will refer the client to a competent therapist or at least suggest therapy during the process, as the unavoidable stress of a divorce has been seen to have untold physical and emotional effects on people. The more emotionally healthy a client is, the easier it is to settle the case.

            It is realistic to expect the attorney to return client calls within a reasonable period of time or if the attorney is in court or otherwise engaged, for someone from the office to respond.  It is also realistic for the attorneys to return phone calls to opposing counsel.  It is reasonable to expect to have a meeting at some time with the attorneys and both parties, in an effort to resolve the divorce, and arrive at a meeting of minds regarding the divorce.  The purpose of this communication is to receive and send the required information, assemble that information into some reasonable way to begin to bring the divorce to conclusion.  If the divorce cannot be concluded by the time these meetings take place, the courts will have a hearing to give recommendations for settlement, so that the process can move towards settlement. 

            Many people are concerned about whether they need a woman lawyer or a man for a lawyer.  There was a time when law schools had more men then women, but at this time, the playing field is becoming more even and in most instances there are as many female law students as there are male law students.  Additionally, the number of women judges in the probate and family court has increased expedientially over the last several years.  Therefore, the gender of the lawyer has little if any impact on the outcome.

            The only place that gender of the lawyer has significance is in the perception and comfort of the client.  Some people are simply more comfortable with a woman than a man as a lawyer, or vice versa.  This is the same issue as that of a female doctor or a male doctor.  The gender has nothing to do with the professional outcome of the medical opinion, but may have something to do with how the patient feels about confiding in a person of one gender or the other, or simply how comfortable the patient feels with one gender or the other.

            Some people have the mistaken impression that a woman lawyer is more or less aggressive than a male lawyer, or a female lawyer is more or less compassionate.  The reality is that the selection of the lawyer should be based on the expertise, experience, the historical results and the responsiveness of the individual. 

A Child's Burdens When Parents  Divorce

           The decision to become divorced should be made by the parents with the needs of the children paramount when making such a decision. Once parents begin to move forward in the divorce process, it is important that they jointly determine how to best communicate with the children about the divorce. Depending upon the age of the children, there are a number of ways to proceed, it is best for parents starting on the journey to divorce, to speak with a mental health professional with a specialty in children about how to best tell the children. Preferably if the children are adolescents, the mental health professional should specialize in adolescent psychology and likewise if the children are younger, then the professional should have experience with younger children.

            Typically, children's first concern is how the divorce will affect them. They will want to know where they're going to live, where they will go to school, how often they will see each parent, and whether the children will be kept together. The problems are compounded if the family is includes step children already in a blended family in which event these special problems need to be addressed separately.

            Once the children's concerns are addressed, a child needs an opportunity to grieve. Since the parents will be experiencing their own grief and are not equipped to help the children with theirs.  Divorce has become so prevalent that many school systems have support groups for divorcing families. Parents can avail themselves of these resources once the parents meet with the schools to determine what is available. It is important also that the school be aware of the impending divorce so that the teachers can be alert to the needs of the children. Therefore it is important that not only should the guidance counselor be informed of what is going on, but the teachers as well.

            If the school does not have adequate resources to meet the needs of the children, then a mental health professional for the children should be engaged by the parents.  Often the cost of such medical treatment is covered by medical insurance.

The communications between the children and their mental health professional are confidential and generally not admissible in court except in certain circumstances. Further the parents need to give the children's space so that they may confide in the trained professional to maximize the experience.  It is important for the parents not to badger the children about what they are saying to their therapist.  It is inappropriate for the parents to require or even request that the therapists share the children's confidential communications with the parents. In fact, the therapist is not allowed share such confidential communications with the parents.

It takes time for children to become accustomed to the regrouping of one family into two families. It is imperative therefore that neither parent introduce significant others into the lives of the children prematurely. It is even more important that neither parent introduce the children to friends with whom they are having casual relationships.  

Because the parents as well as the children are grieving, the parents need to be very careful not to confide with the children about their own issues related to the divorce.  Such divorce related issues include a parent's sadness as a result of the divorce, the details of a parent social life, the legal process related to the divorce, their financial issues and a parent's feelings of isolation and despair resulting from the divorce.  Such issues need to be addressed by appropriate professionals and should not be shared with children as children have enough trouble coping with their losses as a result of the divorce without having to cope with their parent's own losses as a result of the divorce.  When parents seek solace from the children, the children become parentified resulting in a reversal of roles with the children becoming parents and the parents becoming children.

Children only have one childhood and that childhood should not be taken away from a child because of a decision a parent is making especially if that decision is a divorce.

         One of a Judge's least favorite cases is that of the custody of an animal.  People become very attached to their dogs, cats and horses, but an animal is not a child in the eyes of the law.  The standard for the Court to determine the custody of a child is to decide what is in the best interests and welfare of a child or in some cases for the Court to determine whether a parent is fit to care for a child.  The Court views an animal as personal property, and does not make its decision based on the same criteria that it would use in deciding the custody of a child.  The allocation of personal property is made by looking at the value of that property, what the value is of the other property is to be distributed and the Court then makes a distribution based on what is fair or equitable in the circumstances.

            An apt example of an animal as personal property is that of a race horse as opposed to the family dog which may not have much monetary value, but might have emotional value to both of or one of the litigants.  A race horse has monetary value in that it may be worth some specific amount of money and the horse may generate income in addition.  Therefore, the Court would look at the value of the race horse much in the same way as it might look at the value of rental real estate.  In this regard, the Court would be interested to know what the horse cost, what is its current value, and what is the revenue stream that can the horse be expected to generate.  In addition, the Judge may want to know who cared for the horse, who selected it and what the historical arrangements for the horse has been when the couple was together. Experts may be called by one or both parties to persuade the court in its determination and those experts would testify as to value, and the future monetary gain to the owner. On the other hand, an expert in a child custody case would testify as to what is in the best interests of the child.

            As for the family pet, the Court might consider if there are children, what the attachment is for the children.  However, to put this issue to a judge to decide is tricky as judges have so many issues to determine and hear, that they are typically extremely reticent to make a decision about the family pet.  If such an issue is to be decided, it is best for the litigants themselves to arrive at a solution with the assistance of their attorneys or that of a mediator.  The last place to bring this issue for determination is the Courts.

      Alimony is a payment from one spouse or former spouse to another spouse or former spouse, and that payment is taxable to the person who receives the alimony and tax deductible to the person who pays the alimony.  That payment is specifically for the support of a spouse or ex-spouse.  Because alimony is tax deductible and child support is not tax deductible, it is different from child support in that the payments of alimony cannot end upon the happening of the emancipation of the child, otherwise the Internal Revenue Service can disallow the past deductions of the alimony and past taxes plus interest and penalties can be imposed, going back to the beginning of the payment of the alimony.

     The Court considers 20 factors in making an assignment of alimony.  Those factors are listed in the Divorce statute of Massachusetts which is Massachusetts General Laws Chapter 208, Section 34.  Those 20 factors are:

 Length of the Marriage

Conduct of the parties during the marriage

Age of the parties

Health of the parties

Station of the Parties

Occupation of the Parties

Amount of income of the Parties

Sources of Income of the Parties

Vocational Skills of the Parties

Employability of the Parties

Estate of the Parties

Liabilities of the Parties

Needs of the Parties

Opportunity of the Parties to Acquire Future Capital Assets

Opportunity of the Parties to Acquire Future Income

Contribution of the Parties in the Acquisition of their Estate

Contribution of the Parties in the Preservation of their Estate

Contribution of the Parties in Appreciation in Value of their Estate

Contribution of the Parties as a Homemaker to the Family Unit

Needs of the Children

     The relative importance or weight of each of these 20 factors is determined by the Massachusetts Appeals Court and the Massachusetts Supreme Court.  Generally, however, the most important factor is length of the marriage, because the length of the marriage determines how all of the other factors are treated.

     This makes sense, because in a short term marriage of one year, for example, one would expect that there would be less of a payment of alimony than in a long term marriage of thirty years.  Or if one spouse were ill as determined under health of the parties, then it is logical that that spouse would be more apt to need alimony than if that spouse were well and able to work to support him or her self.

     It is up to the parties to provide a picture of the marriage with details about all of these 20 categories in the Statute if a dispute revolves around the issue of alimony, so that the Court can make a decision regarding whether alimony should be paid, the amount of alimony and the duration of the payment.  In this regard, the Courts look at the ability of the person paying the alimony and the need of the person who is seeking alimony.  Lastly, alimony is gender neutral, so that a woman can seek alimony or a man can seek alimony from a woman.