All posts by Nicole Lavallee

Setting expectations in the divorce process

“I Didn’t Know He Was Going to Be Such A D*ck”

In this life, we can group everything into one of two categories: “controllable” and “uncontrollable.”  Within the former are our actions, within the latter the actions of those around us.  Most of our clients that come to us seeking a divorce has AT LEAST one quality of their soon-to-be-former spouse that they dislike.  To possess the belief that they will suddenly change their ways and become an upstanding member of society and a model citizen through the proceedings is, at times, inaccurate.

A whole generation spent snow days and sick days watching crappy daytime TV. The general expectation is “if my spouse lies in court, Judge Judy is going to come from behind the curtain and lock them up!” Unfortunately, in real life, this does not happen.  There are processes and procedures to address inappropriate and/or illegal behavior.  These processes can take time, and potentially money.  But that is why we are here.  

So, let’s talk about a few things we can control. 

DISCOVERY

We need to get to the bottom of finding your marital assets.  Sometimes spouses tend to be sneaky in the months and years preceding a divorce and like to hide assets.  A great attorney will be able to forensically analyze your statements and uncover spending patterns and true income numbers.  

One of the attorneys at Reeves Lavallee, PC recently settled a case with such hidden assets.  The initial offer from the other party was $13,000.00.  After months of discovery and uncovering assets, the final settlement was more than twenty times that initial offer.  Discovery matters. 

When we receive discovery requests from the other party, we must also comply in a timely fashion.  These requests are generally due within 30 days.  We must follow the rules laid out by the Massachusetts Domestic Relations Procedure.  This includes telephone contact to negotiate timelines and a lot of tracking on our end.  We cannot move forward to compel discovery until our clients are also in compliance.  The sooner you produce your discovery responses, the better. 

RECORD KEEPING

Document Everything.  

We get phone calls every day from clients about their cases with updates.  We document everything for our clients and track important dates.  However, we are better able to serve our clients when they are diligent with this tracking.  Our clients save money and time by keeping a concise journal of updates.  The attorney’s pretrial memo is more effective at conveying your narrative if it reads “Parent X was late to pick up on these dates: _______” rather than “Parent X is often late to pickups.”

GET IT IN WRITING

Try to keep your communications limited to texts and emails.  This will help you hold the other party accountable for their responsibilities.  Texts and emails also help to paint the picture for the judge.  Verbal communication can be disputed, texts and emails cannot easily if at all, be disputed.  

FINANCIAL STATEMENT

Do not take this lightly.  You will need to update your financial statement every time you go into court.  The financial statement is a snapshot in time of your current income, assets, and expenses.  The judge relies heavily on this document to determine any support awards and division of assets and liabilities.  Take your time and ensure accuracy in filling these out.  Start them well ahead of your court date, so that you are prepared. This often-overlooked document has the potential to cost you a lot of money if not filled out properly.

CONCLUSION

Filing for Divorce is an extremely emotional and oftentimes traumatic event, and no two situations are exactly the same.  We are here at Reeves Lavallee, PC to help guide you through your specific set of circumstances.  Please give us a call at (508) 425-6945 to set up a consultation today. 

Coronavirus and how it affects parenting time

Everyone is hyper diligent about protecting their family and their children. So when it comes to the Coronavirus, what can a parent do?
For an intact family where both parents live in the same home, your job is to make sure you have “quality time” while still social distancing.

But what about parents that do not live together, whether it because of a divorce or they were never married and/or have never lived together?

The most asked question is, “should I permit my child to go with the other parent.”

As an attorney, I will not and cannot advise you to disobey a court order. The Probate & Family Court has specifically made an order that states that court-ordered parenting time is not “stayed.” This means you MUST follow the court orders.

Each parent needs to look out for their child. At this time, that means that each needs to learn how to compromise more and be more flexible given the situation.

Many single parents have vast differences of opinion on how to do things. The most important thing is communication.
The best solution in this situation is to meditate and settle issues rather than dig your heels in and make matters worse once the court reopens.

Some examples to consider when one parent is in health care. While they are doing their best to protect and care for the general population they are, in the process, exposing themselves to patients who have Coronavirus, or if a parent works at a manufacturing plant that their employment is not taking the precaution of social distancing, or a parent who has determined this is all ‘hype’ and goes out to game night or a birthday a party.

Sometimes the decision is easy. For example, if a child were to travel (by plane or train) for Spring break to see their other parent, I would hope that both parents could agree its not safe and to try and schedule a make-up time when the pandemic is over.

However, when parents are just a mile away, or even walking distance now what? Parents could consider larger blocks of time (perhaps a week) with their children rather than a back and forth every other day, assuming both parents are home and have been self-isolating.

Other alternatives are to offer Skype, Facetime, Zoom or other video conferencing programs to the isolated parent who is missing his/her parenting time. Do these frequently and for a longer duration than a quick check-in. This allows for some quality time with their children. Depending on your Internet speed and the time you have booked together, do projects together, such as crafts, baking, games, etc.

Remember that when the pandemic is over, the parent who has not been able to touch their child due to the distance should enjoy some quality make up in-person time.
The goal is for each parent to be creative, reasonable, and flexible and understand that their child is not their possession but a gift to both parents.

If you want to be a parent who says, “I am the custodial parent and I will not allow contact or parenting time,” then once the court opens, the court will hear your position and might not look favorably on your actions. It is a violation of the law. Plus, if you were close to a settlement before the pandemic chances are, all negotiations have been terminated as the other parent thought you were unreasonable. Your action today and your conduct today has consequences for you, the other parent, and the child that can last a lifetime.

If you are a client of mine and need to work out a schedule with the other parent, we are here to negotiate with their counsel or schedule a 3-way zoom meeting. If you are not a client, and each parent is willing to mediate an agreement, we can book a zoom meeting to mediate your issues.

Please reach out to us at Reeves Lavallee PC at 508-425-6945 to book an appointment.

COVID-19 & PANDEMICS

Hello friends,

First and foremost we hope you are well. Things have been uncertain and these changes to our daily lives are unprecedented. The MOST important thing is that you are healthy. Anything else can be fixed.

We want you to know we are open. We will stay open as long as possible to serve our clients and community. Legal problems cannot be quarantined.

However, we are also aware that we all must do our part to slow the spread of illness and protect our staff, our families, and our clients who are elderly or immune-compromised. With that in mind, we are changing the way we conduct business to allow us to still serve clients without missing a beat and keep everyone safe. We are able to meet with any current or potential new clients via telephone or video conferencing. Most court are actively accepting filing and we will get a hearing once the court reopen.  We can conduct discovery (including subpoenas), review contracts, offer advice and conduct real estate transactions.

If you have any questions about contracts, real estate conveyance or other real estate issues, or your family life and how any orders are impacted by Covid-19 please reach out. 


Please give us a call at 508-425-6945 to book an appointment or email all questions or concerns to our clients-only email address [email protected]. I believe demand for our services will increase sharply in the coming months, and we want to make sure our current clients are given the attention they need and deserve right now.

We are here to help you through this tough time and the unknown changes that lay ahead. We are thinking of you and wish you all the best.

Thank you!

Nicole Reeves Lavallee, Esq

Prenuptial Agreements and Social Media Prenuptials

In order for a Prenuptial Agreement to be valid there are factors that court must consider both at the time of the signing prior to marriage and also at the time of the pending divorce.

Prior to signing the agreement, the court will consider many factors, such as: the terms in the agreement; whether it was negotiated by counsel, or with the assistance of counsel; if the agreement is fair and reasonable and was entered into freely, knowingly and voluntarily; whether any and all of the assets and liabilities were included andif they allocated within the contract; and the date that the agreement was signed in relationship to your upcoming wedding.

At the time of the divorce the court will determine whether the terms of the agreement are fair and reasonable at the current time and what assets are included, or excluded, within the PrenuptialAgreement itself. The court has authority to void certain provisions but generally they will either hold the Prenuptial Agreement valid or invalid.

The benefit of any Prenuptial Agreement is to minimize the issues if and when a divorce is necessary. The agreement should include a determination as to the division, retention or distribution for the following: all assets that were owned prior to the marriage; all assets individually acquired after the marriage; all joint assets acquired after the marriage; all assets inherited after the marriage; and how one spouse can leave assets to their heirs rather than their spouse.

Currently the latest trend included in a Prenuptial is language about conduct, limitations and restrictions of social media as a way to prevent revenge porn. This can be a separate contract or within the Prenuptial Agreement. I would suggest a separate contract so that in the event of a breach you can choose the court most convenient and effective based on your particular facts.

A Social Media Prenuptial includes language about what the parties will do with photographs, videos and other such media, taken during the relationship and also what can be disclosed to others, on media such as Facebook, Twitter, Instagram, Snapchat or other social media sites.

Social Media prenuptial deals with actions of a party after the relationship has ended. Once there is a breach the consequences are potentially forever. A post, a picture, a rant on the Internet, even if they are later delated, is still there. Treat anything you post online as public and forever, even if you believe you are in a protected private conversation. This revenge can cause problems with their employment, family, and friends.

Social Media Prenuptial can give you a sense of security during a marriage or relationship, but just realize these may be a false feeling. The consequences of a breach is financial sanctions for every breach. Depending on the damage amount in the contract a person may opt to still breach it and pay the consequence just to get their revenge.

In my opinion a binding Prenuptial and/or Social Media Prenuptial contract is still better then not having it as it at least makes the other party think before acting and hopefully the contract will prevail, especially if the punitive damages assigned are high enough.

Think before you act.

Mother and father arguing in front of Christmas tree, children sitting in the corner

As the holiday season approaches please realize that your children did not ask to have families that live separate and apart. It is important to follow the court order, if you and your ex cannot agree otherwise. Ignoring the terms of a court order can be detrimental for the entire family.

When one parent decides to unilaterally change the terms of a court order, the child is often put in the middle of the situation, which usually escalates to a battle. Often the children are aware they are supposed to be going with the other parent and are disappointed, and sometimes think, they are being stood-up (creating hostility).

Boy with teddy bear and parents fighting

The parent who does not receive his/her parenting time often has plans that either needs to be changed or cancelled altogether. If they decide to continue with the plans (without their children) than very often every family member comments about the non-complying ex and their evil behaviors. These comments are often heard by the children at future family functions. The children become sad or angry with their family and/or either parent.

Whether the court order was decided either by an agreement of the parties or by a judge, someone decided that the schedule was in the best interest of your children. To simply disrupt the schedule because you decided is not in the best interest of the children.

While we all understand that the holidays are meaningful and important and you want your children with you, it cannot always be that way growing up in separate homes. That is just something you have to accept as a parent and try to consider the other parent and most importantly your children.

Assuming a parent breaches the court order then the party who lost the parenting time may seek a complaint for contempt. In that contempt action the non-complying party may be responsible to 1) provide additional parenting time, 2) loose parenting time at the next scheduled holiday, 3) be responsible for other parent attorney’s fees and costs, 4) loose custody of the children, and/or 5) be sentenced to the house of corrections.

New Child Support Guidelines effective Sep 15, 2017

As required the Child Support Task force has met, established a new child support worksheet and it will be effective September 15, 2017. Every three (3) years the task force meets to determine how the current guidelines are working and what needs to change. Therefore, every four (4) years they issue a new child support guidelines which the courts and attorney must use moving forward.

The calculation formula is similar to those in years past (not the 2013 guidelines) but of course with several tweaks. This is the longest worksheet that I have seen in the past fifteen (15) years. I am working diligently to understand the worksheet, read the guidelines and start drafting samples so I can better assist my client.

Since the guidelines become effective in just under seven (7) weeks now is the time to schedule an appointment to determine how the new child support guidelines will affect you and your children or your support orders.

Child Support

The legislature is required to review and revamp the MA child support guidelines every three years. This means that every four years or so the child support guidelines are updated. While there is a committee, consisting of some attorneys, I often find that the legislature is not creating a formula that is most beneficial to the low or even middle class income.

In years past the guidelines have changed as to whether they will include all sources of income or simply just apply a 40-hour work week. Years ago, there was an increase once children became teenagers, and only the parent that provided health insurance for the children were entitled to deduct it. That has all since changed and likely will never return. Based on the case Morales, you no longer are required to prove a substantial and material change in circumstances in order to request a child support modification.

A new child support guidelines should be effect on August 1, 2017, or so we are told. Generally, the attorneys are able to review the new guidelines 4-6 weeks prior to them becoming effective. Until they are released, then we can do is speculate as to what the new guidelines will look like and how they will impact our clients. I would suggest anyone interested in finding out how the new guidelines will affect them to contact my office to book an appointment so we can discuss how you are impacted and the best way to protect yourself in the event that the guidelines will change for your family, if and when a modification is filed.

Children and having their voices heard

The law is every changing and has been leaning toward giving children of divorced/separated parents more and more rights and more means to have their voices heard.

There are three ways in which your children voices may be heard by a court. They are all permitted in any litigation involving custody or parenting time. This would include cases for custody, paternity, divorces, modification, and in limited circumstances contempt.

  1. Guardian ad Litem, aka GAL. This is a person who has received specialized training and must be recertified every few years. They are often attorneys. However, there are medical professional (often psychologist or psychiatrists or nurses) that may also be GAL’s. The GAL will follow the order by the court as to any limitations, restrictions, broad scopes or number of hours spent on an investigation.

    Generally, the GAL is paid by one or both of the parties involved in the action. The average cost is around $5,000.00. The age of the children can range from a few years until 17. Most reports are going to include interviews with the parties, the child/ren, collaterals (family, neighbors, school personnel, doctors, etc.). The GAL will go to each parent’s house, see how each parent interacts with the child and possibly go to the child’s school. After the GAL completed his or her investigation then a GAL report is created and submitted to the court. The standard for the report is “best interest of the child/ren.” The parties are not permitted to have a copy of the report but can read it with their counsel or at the courthouse in the clerk’s office. Based on if the Judge ordered it or not the report may include recommendations and conclusions.

  2. Attorney Representing Child, a/k/a ARC. This is exactly what is sounds like, your child would get a free ARC counsel has taken a required course and are doing the representation on a pro bono basis.  ARC counsel will only be appointed for children of age 10 or more. ARC counsel does not care about what either parent’s position is other than to ask relevant questions to their client (the child). ARC will meet with their client to determine what their client’s wishes are. The standard for ARC counsel is report to the court their client (child’s) wishes. It is not a best interest standard. ARC counsel participates in all aspects of the pending court action and is permitted to submit exhibits, and witnesses if the matter goes to trial.
  3. Probation Investigation. This is a free service offered by the Court from the probation department (located at the court where you usually have to start your case). The only requirement for a probation investigator is that they work for the probation department. The age of the children can range from a few years until over 18.

    The court will determine what issues will be addressed and reported. The probation officer will talk with the child/ren. They may talk with the parents, or collaterals, but it is determined based on the issues and the court order. The probation officer will likely spend five hours or less. Unless specifically ordered to do so the probation officer will not leave the court and the interviews will be conducted at the court (in person for the parties and child/ren, and by telephone for anyone else). After the probation officer completed his or her investigation then a probation report is created and submitted to the court. The standard for the report is “best interest of the child/ren.” The parties are not permitted to have a copy of the report but can read it with their counsel or at the courthouse in the clerk’s office. Based on if the Judge ordered it or not the report may include recommendations and conclusions.

I would suggest that if you are interested in having your child’s voice heard that you speak with me further regarding which option would be best for your case.

When is a good time to do estate planning?

Holding patient hand in hospital, showing care and love

 

All the time. Anytime. Now. When you are pregnant or having a child it is a good time. When you are getting married it is a good time. When you are thinking about retirement it is a good time. When you have assets it is a good time. When you don’t think your assets are worth anything it is a good time.

Everyone should have three basic estate planning documents executed.

  1. Will
  2. Durable Power of Attorney
  3. Health Care Proxy.

No one wants to plan for their health to fail or their mind to deteriorate or even to die. However, everyone must consider that it is a possible reality and ultimately you will also die.

Will

Most people think “I have nothing so why should I waste my money.” The truth is everyone has something. It might not be assets, but children. When you first have children, no matter your age you should have a Will executed. The purpose of the Will, even without assets, is to ensure that you pick the guardian(s) who will care for your children when you are no longer here. If you have assets you want to ensure that your assets go to the people you want to leave them to. If you do not have a Will then your estate must be probated and anyone, even a stranger, can seek to be the person in charge of distribution of your assets.

Durable Power of Attorney

Once executed, a power of attorney comes into effect when you are mentally incapacitated. The person who you designate will make financial decisions on your behalf and pay your bills during the period of incapacity. If you later gain capacity, such as coming out of a coma, then the assigned power of attorney no longer has authority to act on your behalf until and if you become incapacitated again.

Without executing a power of attorney, and if you became incapacitated, then someone would have to go to court and obtain a conservatorship to pay your bills. The power of attorney allows the same privileges without the need, time and expense of having to go to court to get such permission. If bills do not get paid then you may lose everything you have worked so hard for, including your vehicle or house.

Health Care Proxy

Like the power of attorney, a health care proxy comes into effect when you are mentally incapacitated. The person who you designate will make medical decisions on your behalf during the period of incapacity. If you later gain capacity, such as coming out of a coma, then the assigned proxy no longer has authority to act on your behalf until and if you become incapacitated again.

Without executing a health care proxy, and if you became incapacitated, then someone may have to go to court and obtain a guardianship to make medical decisions. Most people assume that because they are married their spouse has this right, or their parents if not married. The proxy allows you to pick the person who can make the medical decisions. It does not have to be your spouse or your parents.

Just think, if you are a child of divorced parents who agree on nothing, and you are not married, will your mother or father make that decision? Assuming you have a good relationship with both parents, they are both in the hospital demanding to make that medical choice on your behalf, yet they disagree on the medical treatment. Without a health care proxy, the hospital will be unable to act (absent and emergency) until a court intervenes and determines who should make the medical decision. Court proceedings can be time-consuming and costly. The health care proxy avoids the needs for a court to intervene.

Once you have a health care proxy executed do not sign another one just because the hospital or doctor’s office gave you another one. If you do you are voiding out the previous one done by an attorney.  Instead simply tell the medical providers you already have one.

Once you have executed the documents it does not mean you never should think about them again. They should be reviewed and updated as needed. It is my suggestion that you review them at least every five (5) years.

Honesty

I cannot stress enough the need to be completely truthful with your attorney in all cases (except maybe criminal). They should not judge you but they need to know all the facts, good and bad, prior to going to court.

All too often clients want to be selective on which is facts are disclosed. At the end of the day it only makes your attorneys job even harder. If there are skeletons in your closet and your attorney knew what they were then they can come up with a game plans as to how to minimize the effects of those skeletons, or even eliminate them all together.

If on the other hand, you do not disclose those skeletons then often your ex knows, tells their attorney and now it is being used against you. Since you did not disclose it to your attorney the attorney if often scrambling as the judge inquires, tries to deflect the questions, or, worse yet, just looks at you unable to answer.

The most often types of skeletons that come up in family law pertain to the following:

  • DCF involvement (past or present)
  • Criminal history
  • Use of drugs (including marijuana)
  • Abuse of alcohol
  • Domestic violence on any partner (past or present)
  • Restraining orders sought or obtained (past and present)
  • Written agreement between the parties (whether a court order or not)
  • Emails or text messages between the parties
  • Custody and parenting schedule for other children not subject to this case

This is only a partial list. In any civil cases or housing court cases the list above may be applicable, in addition to housing code violations, section 8, leases (written or otherwise), agreed upon reimbursements.

Provide your attorney will all the knowledge they need to best advise you and to defend your actions. Realistically this should be done in the initial consultation, or once the issues arise after the attorney has been retained.