Litigation

Not all divorces are the same.

Mediation

Successful mediation needs expert guidance.

Collaborative Divorce

Reach a settlement through the collaborative process

Divorce Options

Family disputes are personal, and often sad and stressful. Even more stressful, when those disputes result in litigation, they are subject to a system of time standards, procedural rules and evidentiary requirements which may be overwhelming and confusing to you. But there are alternatives to litigation which allow you to proceed at your own pace, in a safe and confidential setting and with dignity and respect. On the following tabs, I will discuss three of those options and how they differ from litigation.

Coffee

You and your spouse discuss the terms for settlement.

Mediation

A neutral third party helps you and your spouse discuss terms for settlement and explore ways around impasse.

Collaborative Divorce

A team of lawyers and other professionals help you and your spouse discuss and negotiate terms of settlement.

What Clients Say...

“Attorney Marks was always very professional, personable and compassionate. he handled all aspects of my case competently and quickly. All phone calls were returned promptly and he answered all of our questions.”

NEW 2021 CHILD SUPPORT GUIDELINES

The new Child Support Guidelines are here and are effective as of October 4, 2021, for all child support orders.  They recognize the hardship of child care and medical insurance costs and the overall increase in cost of living.  The Guidelines may be found at https://www.mass.gov/info-details/child-support-guidelines.

Some, but certainly not all, of the significant changes are the following:

  • The maximum level of combined parental income used to calculate the presumptive child support order was raised from $250,000 to $400,000 per year, while the Court’s discretion was left intact to order additional child support for income exceeding the $400,000 level.
  • Child care costs are to be apportioned between the parents in proportion to their income, up to a benchmark of $355 per child per week, although the Court may deviate from this formula.
  • How the payment of health, dental and vision insurance coverage effects the calculation of support was also revised.
  • The term “out of pocket” medical expenses was defined as those where the children are covered by insurance but the expense is not covered and “uninsured medical expenses” as those not covered because the children are uninsured.
  • The formula and factors for orders as to support of children between ages 18 and 23 were changed.
  • The Guidelines were clarified to reflect that the Court has discretion to, but need not, order payment of college expenses but that where it orders both, the Court must consider the impact of the combined amount of both orders.
  • Clarifying language was added as to how the different forms of Social Security payments should be treated when calculating child support.
  • Changes also differentiated between the treatment of military allotments and allowances when calculating support.
  • Changes were made to clarify how child support should be calculated when there are orders of child support and alimony where one party pays both or where one party pays alimony and the other child support – following up on a recent Appellate Court decision.
  • Child care costs that cause hardship was established as a possible grounds for deviation from the Guidelines and a presumption was established that there should be deviation where the overall order is more than 40% of the payor’s available income.

Please feel free to call to discuss these changes in more detail.

Modification of Child Support During Pandemic

MODIFICATION OF CHILD SUPPORT DURING PANDEMIC

So, what do you do, in the time of Covid-19, if you’ve lost your job and are subject to a child support order that you can no longer pay? You realize the tremendous pressure you are under because your income had been reduced and you understand the hardship that reducing your support payments will have on your former spouse and children.

Ideally, you and your spouse are able to discuss the situation and reach a compromise. A good place to start is to complete the Massachusetts Child Support Guideline worksheet based upon your and your former-spouse’s current income. According to Massachusetts General Laws Chapter 208, Sec. 28, there is a rebuttable presumption that the guideline figure will be the appropriate amount of the Court order. The worksheet can be found at the following link: https://www.mass.gov/info-details/child-support-guidelines#2018-guidelines,-forms,-and-information.

However, should you be unable to find a solution on your own, it may make sense to introduce a mediator or collaborative team to the conversation. This can be done via teleconference or videoconference while still maintaining social distancing.

If an agreement is reached, either by yourselves or through mediation or collaborative process, the written agreement, a joint modification petition and current financial statements of both parties, may be submitted to the Court. Although the Courts are temporarily closed for most non-emergency matters, the Judge may entertain a request to enter a Judgment of Modification, adopting your Agreement, without anyone having to appear at the Court. Probate and Family Court Standing Order 2-20.

It is important to understand that Massachusetts General Laws Chapter 119A, Section 3 provides that a child support judgment can only be retroactively modified back to the date of service of a Complaint for Modification upon the other party. Therefore, it is important to file and serve your Complaint for Modification as soon as possible. By doing so you are setting the parameters of retroactivity. This is also true now, while the Court’s doors are closed to all but emergency hearings, because the Clerk’s Office will still accept such a pleading for filing. Although the Court likely will not act on the Complaint during the coronavirus pandemic, when the declaration of emergency lifts and the Courts reopen to usual business, the Judge has the ability to retroactively modify child support to the date of service of the Complaint.

Filing a Complaint for Modification to establish a date for retroactive relief should not be viewed as shutting the door to settlement. It would probably be a good idea to reach out to your former spouse, before serving him/her, to discuss your job loss and your desire to work toward settlement while explaining the need to file and serve the Modification Complaint. This may soften the blow and make settlement more likely. However, it is important to file and serve as soon as possible to safeguard your rights.

Lastly, if you and your former spouse plan to informally agree to change the child support obligation without changing the underlying court orders, be advised that you do so at your own peril. In the opinion of Quinn v. Quinn, 49 Mass. App. Ct. 144 (2000), a written agreement to lower child support was not a defense to a later Complaint for Contempt, as the orders were not changed. The basis of the opinion was the prohibition, contained in MGL Ch. 119A, Sec. 3, that child support orders can only be modified to the date of service of the Complaint. As no Complaint for Modification had been filed, the Court could not retroactively modify the order and the payor spouse was found in contempt of the child support order despite having complied with the written agreement. Point being – if you make an agreement to modify child support you should change the Court orders!

Virtual Mediation and Collaborative Process

March 31, 2020

I hope you are managing well during this trying period. Social distancing creates new stressors that impact every member of every family and household – isolation, child-care responsibilities, lay-offs, medical issues, anxiety and fear, etc. Of course, for those households and families that were already suffering from conflict and division before the arrival of Covid-19, the impacts may be aggravated.

Through tele-conferencing and video-conferencing, mediation and collaborative process are dispute resolution methods that you and your spouse/partner can use to address the conflicts that you are experiencing now, such as changes to the parenting schedule, child exchange or finances. And, if you were already contemplating or in the midst of divorce, though video and tele-conferencing, mediation and collaborative process can be used now to begin or continue settlement negotiations while the courts are essentially and temporarily closed (except as to emergency and agreed-upon matters).

If you would like more information about these virtual options, please call or send me an email. I am checking the phone messages and emails daily.

Stay healthy.

Scott