Tuesday, January 4, 2011

Antonin Scalia Makes Me Homicidal

I just got finished reading this little gem of an article and it's inspired me to write my first blog post in...so long I have no idea but I'm too lazy to click back and see when it was.

Basically the article discusses "Justice" Scalia's literalist interpretation of the 14th Amendment of the Constitution. You remember the 14th Amendment right? The one that was ratified to abolish HUMAN ENSLAVEMENT? Yeah, that one.  Well, "Justice" Scalia (I can't bear to use the word justice and Scalia in the same sentence without quotation marks, for reasons too obvious to mention) thinks that the part of the Constitution that says: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws" does not prohibit discrimination against women. He goes one step further and says that if states want to prohibit discrimination based on gender, they can do that but it's not in the Constitution.

Um, hey, Scalia, in case you didn't realize, if the 14th Amendment doesn't prohibit states from discriminating against women, then states could just as easily pass laws that systematically DO discriminate against women. And barring protection from that state's constitution, there would be no one to stop them.  Fan-freakin-tastic.  Cause life as a women has always been so easy, what would we ever need constitutional protection for??

The thing that really gets me most about this isn't just the gross misogyny being spewed by a fat old white man sitting on the highest court of our nation, it's his complete disrespect for the precedence set by the very Court on which he sits.  The Supreme Court held that the 14th Amendment applied to gender discrimination in 1971 and basically what you're telling me "Justice" is that if you had your way, you'd prefer to piss all over 40 years of the Court's history rather than uphold a woman's right not be systematically screwed because of her gender.

It's hard enough to be a female in the legal profession and in the world in general. And reading things like this really sucks the wind out of me. Isn't there any hope that I can someday live in a world where my vagina doesn't make me the subject of unwarranted attention and criticism?  I know I should feel grateful for the work that has been done for women to be as close to equal footing as our male counterparts in all of history, but frankly, its not enough. None of the pressures of work, life, being smart and successful, child bearing, child rearing, somehow taking care of one's own body and mind and everyone else's at the same time is put on men, at least not from where I sit or from where I see many of my female counterparts sitting. Society is accepting of men as tunnel-visioned providers, but if you're a woman, no one tunnel is available or acceptable. If I work and never have kids, I'm a failure as a woman-mother. If I work, have kids, go back to work and take time off of said work to take care of my kids from time to time, I'm a failure as a women-worker. If I work, have kids, go back to work and don't take time off of work from time to time to care for my kids, I'm a failure as a woman-mother. And finally, if I work, have kids and never go back to work and instead take care of my kids all the time, then I'm a failure as a women-worker and woman-intellectual. Them's the choices. And that's WITH the equal protection clause place.

And this would all be wasted words on the Honorable Mr. Fathead, so I really have no idea what the solution to this is. But, for now, I am going to let the words of Ms. Hannigan run through my head and lull me into a more peaceful state...{kill kill kill kill}...oh and post this photo of the scales of justice that would make Scalia's head do one of those cartoon spins around his neck.

Friday, May 21, 2010

On the Flip Side: What happens when my ex loses his (or her) job and stops paying support?

There is never an automatic reduction or termination of a child support obligation because of a loss in income. REPEAT: There is never EVER an automatic reduction or termination of a child support obligation because of a loss in income.

If someone loses their job, they need to take affirmative action to have the child support reduced. If you are the person receiving the support ("Recipient"), and the Payor experiences a legitimate job loss, it is probably advisable to agree to a lower, guidelines amount of support until the payor get a new job. This can be done by the two of you filing a Joint Petition for Modification of Child Support, each of your financial statements and Child Support Guidelines Worksheet. The time spent in court over a legitimate job loss is unlikely to fruitful and if you were still an intact family, if one person lost their job, the family would experience a reduction in income. It’s not easy, but it's life.

The problem usually arises when the loss in income appears to be voluntary (as in, they quit a good job without good reason) or after the initial job loss, a lot of time passes and there seems to be little to no effort on the part of the unemployed person to find a new job. If this is the case, and the unemployed person is behind on their child support, you can bring a Complaint for Contempt. 

If at the contempt hearing, the Payor swears backwards and forward they have tried everything and can’t find a job, ask the court to order that person to comply with the job search program in the Probation Department and ask for a review date in 30-60 days. If the Payor doesn’t comply with the job search program, when that review date comes, you can ask the court to order sanctions (i.e. additional money) or even jail time.

If the Payor does comply with the program but still hasn’t found a job, work with Probation and the court to determine what the problem is preventing this person from finding a job. If it’s lack of education or training, consider agreeing to a lowered amount of support while the Payor gets some additional training or education. This could mean a long-term increase in the Payor’s income which could mean more support in the long run for the children.

If you agree to a lowered amount of child support through a joint petition but then time passes and the unemployed person is not actively seeking a new job, you can bring a Complaint for Modification asking the court to return support to the original amount and/or force the Payor to comply with the job search program through the Probation Department.

Having an attorney for this process is always the best case scenario but if you cannot afford full representation, consider asking if your attorney offers Limited Assistance Representation like we do at Jackson & Torrone, P.C.

The best piece of advice to Recipient parents having trouble getting child support is that the most effective means of getting regular and appropriate child support amounts is by working together as best as you can.  Encourage the unemployed person to reach an agreement about how they will find a new job and discuss options for education and/or training that could bring more money to both the children and the Payor in the long run.

Do I have to pay child support if I lose my job?

There is never an automatic reduction or termination of a child support obligation because of a loss in income. REPEAT: There is never EVER an automatic reduction or termination of a child support obligation because of a loss in income.
 If you lose your job, your hours are cut or for some other reason you are getting paid less, and you don’t take affirmative steps to have your child support adjusted, it stays the same and the arrears (back child support) start adding themselves up. 
Therefore, when a loss in income occurs (and we’re talking legitimate, involuntary loss, not just you quit) or you know it’s coming (a planned lay-off) then the first step should be talking to the Recipient parent about agreeing to temporarily reduce support in accordance with what the unemployment income will be.  If the Recipient parent agrees, then a  Joint Petition for Modification of Child Support must be filed with the court. Both parties sign it and both parties must submit financial statements and a Child Support Guidelines Worksheet along with the petition. If these are filed correctly, there will be no need to even step foot inside a courtroom.  If the Recipient parent is reluctant to change support, suggest mediation or discussing it with an attorney because having an agreement is first and foremost the easiest and least painful route for everyone.
If the Recipient parent will not agree to any changes, then you need to file a Complaint for Modification.  Not only do you need to file this complaint, but once the other party is served, you should file a Motion for Temporary Orders, asking the court to lower support temporarily while the case in pending because you are unemployed or have lost income for some reason.
Having an attorney for this process is always ideal, and if you cannot afford full representation, consider asking if your attorney offers Limited Assistance Representation as we do at Jackson & Torrone, P.C.

The biggest piece of advice is don’t let time pass without taking action. Talk to the other parent as soon as you know this is happening and start working on how to handle it as soon as humanly possible.

Friday, February 19, 2010

Mythbuster: I have no assets, I don't need an estate plan.

It's no secret (at least I don't think it is) that I am a young(ish) attorney.  Most of my former classmates, friends and acquaintances are also on the younger side and many of us, myself included, do not own our own homes yet, are not married and do not have children.  So when I shout from the mountain tops about the necessity of having an estate plan, I get a LOT of "I don't need one, I don't  have any assets" responses.


First, while you may not *think* you have assets, you actually do. If you have a bank account, a car, a computer, clothing, a cat, dog, hamster, orangatuan, you have assets. These things need to be taken care of by someone if you pass and it'd be nice if you just chose that "someone" and told that person what to do with your stuff.  Otherwise,  your family, who is devastated by your tragic death, is stuck playing a guessing game and also having to file in the Probate Court to get your piddly little pile of stuff out of your apartment (you said you had *no* assets right?).

Second, even if you didn't have ANY assets (which I think we just established that you probably do), you might not die, you might just become incapacitated.  And if you are over 18 and have no health care proxy or durable power of attorney (the two documents that work together to handle your health and make sure you bills get paid while you're laid up), no one has the clear right to make ANY medical decisions on your behalf or keep your financial life afloat while you are out of commission.

Example: A client's brother fell off a ladder and had severe head trauma that rendered him mentally incompetent for about 3 months. He had no estate plan. His sister had to spend thousands of dollars to get an emergency guardianship just so he had an apartment to go home to when the time came and he didn't end up in bankruptcy from his bills going 3 months overdue.

Bottom Line:  An estate plan is not just a will. It's a PLAN for all types of adverse events that could occur: death (the obvious one), physical incapacity, mental incapacity, temporary or permanent.  It's a PLAN that makes your life easier if anything bad happens and, almost as importantly, makes your family and friend's life easier if anything should happen to you. Because in times of tragedy, wouldn't it be nice if your loved ones could be by your bedside and not in a courtroom?

If you want to talk to an attorney about how to get started with your estate plan, feel free to contact me at Jackson & Torrone, P.C., kbneubauer@jackson-torrone.com, (413) 532-1200.  Even if you're not in the western Massachusetts area, I can refer you to some great estate planning attorneys in several different areas all over the Northeast.

Friday, January 15, 2010

How NOT to Date After Splitting Up: 5 Mistakes Separated Parents Make

Per my love for all things celebrity gossip, I ran across this article about Jon Gosselin and what appears to be girlfriend #3.  This led me to think about the types of mistakes I see parents make with regards to dating after they split up. I say "split" instead of divorce, because the same rules apply for married and never married parents.  Disclaimer: I am not a mental health professional. My advice is from the perspective of a family law attorney who sees first hand what has worked for my clients, my friends and colleagues and what hasn't.

 Mistake #1: Going Straight from "Single" to "In a Relationship"

Otherwise known as the above-referenced "Jon Gosselin Method," this situation is probably the most common, and, as far as human nature goes, the most understandable. Lots of things can stay the same after separation, bills can still be shared, child care can still be shared, but what cannot be shared is companionship.  Being alone is the probably the biggest and most unpleasant change a newly separated parent deals with, especially if that parent was not the one who initiated the split.  A common reaction to this unpleasantness is to avoid it altogether by entering into a new, and quickly intense, relationship with someone else.  In comparing the new partner to the old partner, one often only sees the good sides of the new partner, and thus thinks this person is perfect and the relationship is going to last forever, so why not introduce Mr. or Miss Perfect to the kids?

Well, a couple reasons. One, even if this person is really THE person you will end up with, your kids may not be ready to totally sever their fantasy of their parents being together.  There are enough changes going on, changes in schedule, changes in where they sleep, eat, who picks them up from school and even changes in how they view their parents since now each parent must take on the role of both parents when the kids are with them.  They need a break in the change department, and an easy way to give them a break is to avoid introducing them to a new relationship until at least six months to a year after separation.  If it has been six months to a year after separation, then I would suggest a good rule of thumb is to introduce a new partner after 2-3 months of dating, and even then, to refrain from words like "girlfriend" or "boyfriend" and stick with "friend" until the kids warm up a bit.   Kids will generally become attached to the new partner in some way, and if things don't work out, they will feel that loss. This is not something be taken lightly.

This is also not to say you should be lying to your kids.  The truth does need to be told, but it can be told gradually and in an age-appropriate manner that eases them into yet another change in their lives.

Mistake #2: Freaking Out When the Other Parent Goes Straight from "Single" to "In A Relationship"

Even if you do everything right in your own dating life (take it slow, not introduce to the kids too soon), your co-parent may not.  And this often leads to the massive mistake of "freaking out" when the other partner starts dating too soon.  The reactions can range from angry emails or texts to outright denial of parenting time, none of which is productive to a good, working parenting relationships.  Even if the new partner is (was) your best friend, focus on how you can help your children work through the other parent's poor parenting choice.

It's fairly simple. Let them know that they can ask you anything they need to, even if they are worried you may not like it. And if/when they do ask you about the other partners' dating habits, answer their questions calmly, truthfully and without any ill will toward the other parent.

A good soundbite I tell parents to use when the other parent has put the kids in a tough spot: "I'm sorry you have to deal with that and that's something only grown-ups should have to worry about.  You can always talk to me about anything you are uncomfortable with, and I will work with "Other Parent" to help work things out."  This way, kids don't start thinking they can pit one parent against the other, but they feel supported in their feelings.

Mistake #3: Oversharing About Your or the Other Parents Dating Relationship with the Kids

Talking to your kids about who are dating, when the time comes, does not mean sharing every, single detail. Just keep it simple. I suggest letting children think of the new partner like they would a new friend at school. Someone they can have fun with and someone they should respect, nothing more, nothing less. If there are "You're not my mom" issues, there need not be a 30 minute discussion about the difference between mom and a new girlfriend. A simple "We respect "New Partner" because he/she is our friend, and we treat all of our friends with respect."

Mistake #4: Totally Ignoring the Dating Issue with the Kids

If you're not at the stage where it's time to introduce the kids to a new partner, or even if there isn't a new partner but you are going out on dates, kids aren't stupid and if they ask questions, their questions should be answered in an honest, yet age-appropriate manner. For example, if a child asks "Do you have a boyfriend?" and you are dating, but haven't reached a level of commitment where that would be shared with the children, an answer could "I like to spend time with all my friends and sometimes I may go out with male friends, but I don't have a boyfriend." As with the prior examples, answers to issues like this should be short, sweet and age-appropriate. Delving into details, talking about possible scenarios, generally serves to confuse kids who are usually just checking in to make sure everything is ok and nothing is going on behind their backs.

Mistake #5: Only Paying Attention To the Kids, Never Enjoying Adult Time

Some parents avoid the first 4 Mistakes but not dating or socializing at all. This is a huge mistake. Even if you are not ready to date, you should spend time with your adult friends and family, away from the kids.  Putting too much focus on the children generally leads to spoiled kids.  Kids need parents who are in tune with their adult selves, and by "getting out there" with old friends and new ones, helps ease loneliness that divorce can bring, and help to re-center and make you a better parent.

Thursday, December 31, 2009

Reflecting on "Another Year in the Trenches"

This is short, and not even based on an original thought, but it is so fitting for this to be my last blog post of the year. I just read this article written by seasoned criminal defense attorney Norman Pattis. Please, take a minute (or ten) and read it.... It is profoundly insightful and even if you didn't spend an entire semester in college taking an English class on only Milton's Paradise Lost (did I mention I was an English major before lawyer-land?), and even if you're not a lawyer, it speaks to a basic deep-rooted fear that comes with being a human being: What I do may not matter.

And it's true, what I do, what we all do, may not matter. This is not a deep or profoundly original emotion for me to harbor. That possibility looms large over everything.  But in reflecting on this past year, and varying amounts of destruction I've witnessed throughout this year in my family cases, I least can leave the year knowing that the reason I am a lawyer, the reason I stay a lawyer, is because at some moment, I might matter.  I don't know Norman Pattis. He's a more experienced, wiser attorney, he's a blawgger I came across via a re-tweet on Twitter. He practices in a completely different field than I do (a field, which I might add, that I want nothing to do with).  But his observations, questions and fears are a common thread among any job where human lives are affected.  He struggles with losing a case and having to answer to a mother whose son has gone to jail. I struggle with losing a case and having to answer to a mother whose has had her rights as a parent stripped of her.  Same result, different courthouse.  And I've only been at this for a few years, I can only imagine the toll that consistently witnessesing the wrenching of families being torn apart will have on me in 20 years.  But I'm up for it. And when I'm not up for it, I'll pass it on to some fresh-faced attorney who likes Will Ferrell movies and filing lots of responses to motions for temporary orders. Oh, and the next time someone pisses and moans about the sad state of the legal profession, I'm shoving Norman's post in their face.

So with that, my New Year's Resolution, at the least overreaching one, is to keep up.  "The law is hard; I must, somehow, become harder than sorrow"- Norman Pattis

Tuesday, December 29, 2009

When Your Elementary School Teacher Said "Listen and Follow Directions" You Should've Paid Attention

My elementary school report card used to have a "Behavior" section on it that had nothing to do with academics. As I recall, the categories were things like "Shows Effort" "Uses Free Time Effectively" "Participates in Class" and the ever-popular (ever-dreaded) "Listens and Follows Directions."  I did a little googling and no kidding, they STILL have that category (or at least Mrs. Walker in Westland, Michigan does).  I was, admittedly, a talker in elementary school (shocking, I know).  And my talking sometimes interfered with my "listening and following directions" skills.  I would bring home straight A's but still dread giving my report card to my parents because I would get "Needs Work" in the "Listening and Following Directions" category.  Devastating to my budding perfectionism as an 8 year old, but I digress.

As more and more clients come through my door, I have found that a LOT of people should have worked a LOT harder at getting at least a "Satisfactory" in the "Listens and Follows Directions" category.  Because now, as adults, it has a lot more consequences than your mom taking away television for two weeks.

In family law cases, when one person does not obey an agreement that has been approved by a judge (thus it is now  magically not just an agreement, but an order of the court) that person is at risk of being found in contempt.  This is not the kind of contempt we see in movies where a lawyer gets thrown in jail for being mouthy to the judge.

What is a "Contempt"?

What I'm referring to is a Complaint for Contempt. It is filed against the person who is supposed to be following an agreement or court order  by the person who is losing out by the deal not being followed.  The most common example of this is unpaid child support.  If a parent does not pay child support that has been ordered (or approved) by the court, then the parent not receiving that support can file a contempt.  The judge then determines whether the non-paying parent has the ability to pay, and if that parent does but is refusing to, then the judge finds the non-paying parent in contempt.  The same goes for following parenting schedules, following through with agreements or orders regarding selling a house, refinancing a mortgage, making spousal support payments, paying tuition, you name it.  If a judge approved your agreement (or just flat-out ordered you to do it) then you better make sure you get a Satisfactory in Listens and Follows Directions.


Consequences for being found in contempt are serious.  A judge has equitable powers in a contempt proceeding, which means they don't have just the specific powers laid out in the contempt statute, but they have broad powers to order and change things around in any way they see fair to make the wrong right again.  Layman's terms? This is a LOT of power and you don't want to be the one to test its limits.  Not to mention, a person found in contempt will almost definitely be ordered to pay the other person's attorneys' fees and costs for having to bring the court case. Other potential consequences?  Jail time (and yes, it happens).  Fees, costs, interest and penalties. Reporting to programs through the Department of Probation on a regular basis. Changes in the original agreement or court order, including changes in the amount of support payments and changes to a parenting schedule.  And changes made in contempts are not generally kind to the person found in contempt.

Bottom Line:  Just because you agreed to it, doesn't mean it's flexible.  Agreements in family law that are approved by a judge are court orders.  So make your 3rd grade teacher proud and listen and follow directions.

And if you're reading this and thinking "I have a court order and so-and-so still doesn't follow it," you should definitely find an attorney in your area (Western Massachusetts, here I am!) and start taking steps to bring so-and-so in line.