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.

Mediation

Most people who are going through, or believe they will be going through, the legal process believe it must be adversarial. It does not. There is a simpler and cost effective way to resolve your dispute. Why not give mediation a try? You really have nothing to lose.

There are many attorneys who are opposed to mediation. I am not exactly sure why but I suspect it might have to do with the fact that attorneys are trained to be more adversarial rather than to negotiate. However, most cases that go through the legal system settle. Only a small portion of cases goes to trial, as it should be in the family, housing and civil cases.

In Probate and Family court most cases are required to do some form of settlement negotiations. In Housing court, you are required to go to mediation. In Small Claims court, everyone is encouraged to select mediation as a viable option before your case is heard by a decision maker (judge or clerk magistrate). In District court and Superior court (civil cases) you can request mediation to attempt to settle your case.

There are government funded programs where you can go to mediate your case. If you want to use these government funded programs you will need a referral from the court where you case is filed.

You can always contact a private attorney, like myself, who does private mediations as well. Generally, the cost of mediation is split evenly between the disputing parties. However, if the parties have made other arrangements then a mediation will not get involved in how payment is made, unless that is a dispute within the mediation itself.

I think that anyone who want to use mediation to resolve their dispute should verify the cost of the services in advance. Most attorneys will charge a fee for the mediation session, usually at a specified hourly rate. In addition, there is usually a flat rate fee to draft the documents needed upon settlement of the case to be filed with the court. I have noticed that most mediators charge more than their normal hourly rate for mediations. I do not subscribe to this and my regular hourly rate as an attorney is the same rate I charge for mediation services.

Depending on the complexity of the cases, the documents that needs to be produced for settlement/negotiation, and issues in dispute the mediation may take multiple days. Some mediations can be completed within an hour, while other take four to six hours. You can always obtain an attorney’s position on the settlement before submitting it to the court for approval.

The benefits of mediation:

  1. To not take up time in court for issues that can be resolved outside of court. You can mediate a case before anything is ever filed in court;
  2. To be able to represent your settlement/case in court within few minutes, rather than siting in court all day waiting for your case to be called (where a decision may not even be rendered);
  3. You split the cost of a qualified attorney, rather than each party paying your own attorney fees;
  4. You get an agreement that both parties can “live with” and are not decided by the judge;
  5. If a resolution is not reached, you may be closer to resolving issues, have some issues (if not all resolved) and you can understand the other parties position.

Why not contact our office today to settle a dispute?

Jurisdiction

In legal matters involving children, physical location of where child lives is very important when deciding jurisdiction. If one parent moves a child out of state, then the jurisdiction could change immediately, or after a statutory period of time depending on which state.  In Massachusetts, the duration is six (6) months or more—at which point Massachusetts no longer has jurisdiction over the parties.

Therefore, any modifications (changes that need to be made to an agreement) must be done in the child’s new home state. However, the Commonwealth of Massachusetts can still enforce any court orders and a contempt filed in Massachusetts (assuming the other party remains in MA) can be addressed and heard by the court. If the custodial parent is served in hand with the contempt summons and he or she fails to show for the contempt hearing, then a capias (warrant for their arrest) will be issued. If both parties are present for the hearing, then the court will address the contempt and ultimately make a ruling. However, the contempt being filed by the non-custodial parent must pertain to the parenting time.  A contempt for non-payment of child support can also be filed in Massachusetts.

If the other state modifies the Massachusetts court order, then Massachusetts would only be able to address issues pertaining to support for the child.

The Massachusetts court have no jurisdiction to modify or change the orders after the child is gone more than six months. A modification would need to occur in the child’s home state, where they are currently residing.

Removal of children out of state

This is American and I can choose to live wherever I want to. I do not need the court to tell me where I can go and where I cannot. Refusal t allow me to move is violation of my Fifth and Fourteen amendments to the US Constitution. If I want to leave Massachusetts then I can, right?

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If you have children and the other parent wants to continue to live in Massachusetts and does not want you to take the children to another state permanently then the answer is not a simple one.

We are only minutes from the Connecticut border now so an extra five
minutes drive will not make any difference.

I have heard this statement so many times in my practice and the truth is that it does matter and it does matter a lot.

In most separation agreements (terms of the divorce), there is language that precludes one parent from permanently leaving the Commonwealth of Massachusetts without a court order or obtaining other parents’ permission. Even without that language in the separation agreements, Massachusetts General Laws, c. 208, § 30, states that children “shall not . . . be removed out of this commonwealth without such consent . . . without the consent of both parents, unless the court upon cause shown otherwise orders.”

In other words, both parents must agree or the court must approve the parent to take the children out of the Commonwealth. The reasoning behind this, in part, was to prevent a parent from alienating the other parent or prohibiting the child-parent relationship/bond.

If the other parent does consent then it is best to get it in writing, and whenever possible, to make it a court ordered modification.

There are different standards required by the parent in order to prove that they should be permitted to move out of the Commonwealth with their children. The most well known is based on the “Real Advantage” test as established in Yannas v. Frondistou-Yannas, 395 Mass. 704, 1985. While Yannas is an old case it is still good law and is applied in full, or in part, in removal cases. The real advantage test is a two-prong test and both prongs must be met in order for the court to allow removal.

“If the custodial parent establishes a good, sincere reason for wanting to remove to another jurisdiction, none of the relevant factors becomes controlling in deciding the best interests of the child, but rather they must be considered collectively. Every person, parent and child, has an interest to be considered. The judicial safeguard of those interests lies in careful and clear fact-finding and not in imposing heightened burdens of proof or in inequitably identifying constitutional rights in favor of one person against another.” Yannas 712-713.
When considering moving out of the Commonwealth with your children it is best to consult wt. an attorney months in advance to better understand the law and what a move would legally entail.

The Yannas case pertains when one parent is the custodian. In situation where the parents share custody, then Mason v. Coleman is more applicable. 447 Mass. 177 (2006). “Shared physical custody contemplates that ‘a child shall have periods of residing with and being under the supervision of each parent . . . assur[ing] . . . frequent and continued contact with both parents’.” G. L. c. 208, s. 31. The court must determine what is the child bets interst given all relevant factors.

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