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

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

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.

Dear Tiger: Speaking My Mind Feels Grrrrrrrreat

I've been trying to not write about Tiger Woods but the more it pops up on my CNN news ticker and the more I see it in line at the grocery store, the more the "I can't shut my mouth when I have an opinion" side of me comes rearing its ugly head.  So here is my unsolicited opinion on the Tiger situation.

1. The people who think the solution to this debacle is for Tiger's wife Elin to just take the kids, his money and run for the hills haven't really thought this through.

Taking his money: Let's not kid ourselves here. Taking Tiger's money, even $80 million dollars under the allegedly renegotiated prenup, isn't going to hurt him.  He's worth a BILLION dollars.  Even if she took half, which arguably wouldn't happen since much of his earning capacity was achieved prior to the marriage, he still has $500 MILLION dollars and a very long, likely lucrative career ahead of him.  Hitting Tiger in the wallet isn't going to do squat.

Taking the kids:  Newsflash people. Even if you are a dirty, rotten scumbag cheater (oh, did I mention I'm not a fan of infidelity?), you still get to be a parent.  Even if Elin decides to leave Tiger, he's going to get to see his kids. And they are really young, so Elin and Tiger have a loooooooong road of co-parenting to navigate.  And not only will he get to have time with his children, but they are going to have to put all this crazy nastiness aside and be cooperative, able-to-communicate-without-slinging-curse-words-left-and-right parents to their kids.  At least, that's what they're gonna have to do if they don't want to end up raising the next LaLohan.

2. The media attention, while intrusive, is not inappropriate and Tiger's silence is only making things worse.

Tiger wants everyone to just shut up about it and leave him alone.  Well, duh, wouldn't you??  But really, he has profited immensely from not just his talent as a golfer but his well-calculated and cultivated image of

"Tiger Woods: Clean-cut, Down the Straight and Narrow Family Man." 

You think he would've gotten his who-knows-how-many-millions -of-dollars Nike deal if his public image was that of a tail-chasing, cocktail waitress connoisseur?  Of course not.

Well guess what Tiger? When you make money off your GOOD image, it's sort of only fair that there be a fascination with that image being shattered like the window of your SUV when your wife was trying to 'save' you with a golf club...uh yeah...But seriously, Tiger owes us an explanation. He can't keep letting the media do his talking for him. (Unless of course you really did have over 10 mistresses, fathered over 35 love children and clubbed baby seals after each rendezvous) And I am not talking about not some lame, bland apology about his "transgressions."  He owes us a full-on, Oprah-on-the-couch moment where he sincerely explains the TRUTH and just as sincerely apologizes for it.  Believe it or not, the public opinion can be pretty forgiving if you just 'fess up and then clean it up.  Don't believe me?

  How about Charlie Sheen?

[caught several times with hookers, destroyed marriage to model/actress wife Denise Richards, finally stops prancing around with Heidi Fleiss, now the star of Emmy-awarding winning sitcom and some fairly humorous Fruit of a Loom commercials alongside another gambling, tail-chasing athlete who just never got caught: Michael Jordan]

How about Robert Downey Jr.?

[incarcerated for drug use on multiple occasions (see mugshots  below), cleans up his act (congrats there Rob), wins us over as Ally McBeal's boyfriend and becomes the star of blockbusters like Tropic Thunder and the new Sherlock Holmes movie I can't wait to see - oh, and stops getting arrested]

Susan Boyle maybe?

[skyrocket to fame, loses the competition that made her famous, has very public, total mental breakdown, committed to a hospital, now has #1 best-selling album]

And an oldie  but goodie, Mr. Hugh Grant?

[caught with a hooker in his car while in relationship with model/actress Elizabeth Hurley, two Bridget Jones movies and a string of adorable, romantic comedies later (and no more hookers), he's still the utterly delicious English gentlemen we all swoon over].

There you have it Tiger, clear as day. Tell the truth, stop letting the media do your telling (and embellishing) for you, say you're sorry and then lay low, keep it in your pants and work on things with your wife. Which brings me to #3.

3. Yes, I think they should at least try to work on their marriage before deciding that this situation is unsolvable.

You'd think as a divorce attorney, and as a woman, I'd be the first to tell Elin "Once a cheater, always a cheater" or something akin to a Kate Gosselin soundbite "You have to protect the kids" (those rabid mistresses bite you know).  But really, marriage means something. And the first thing it means is that you can't just pick up and run when the golf club hits the windshield.  Aside from the fact that because they have kids, neither of them can just 'pick up and run,' they should try to work it out because they decided to be each other's husband and wife.  Counseling, hard work, amicability, respect, working together to raise their kids and fix each other, that is where the real answer lies.  Granted, these things probably weren't occurring when Tiger was running loose in Vegas, but they can start happening now and they can keep happening for the rest of their time together.

If they both commit to that, (and really, both of them, and really, commit) they won't be another celebrity divorce statistic for me to read about in the grocery line. Because honestly, between Brangelina, Suri Cruise, Britney and the Gosselins, I have enough celebrity drama to keep me plenty occupied when standing behind that lady with 35 coupons.

Massachusetts Child Support for Dummies

Introduction: In searching for images to add to this post, I googled "Child Support" Images...and discovered some incredibly disturbing images of child support stereotypes.  Children throwing money in the air, men behind bars, cartoons of women with jewelry labeled child support and some other images so offensive I refuse to even mention them (Hitler people, there was an image with Hitler involved).  THIS is why people need to take the time to understand the child support worksheet.  And if you want to get angry with someone, get angry with the people who created the worksheet (The legistlature, democracy at work! Did you pay attention to what your legislator was voting on...?) don't get mad at your attorney, the other parent's attorney, the judge OR the other parent.  The worksheet is what is, understand how to fill it out correctly, deal with it and maybe write your Congressman.

Ok, so you don't have to be a dummy to find child support calculations confusing.  I hear from clients and friends things like: "My friend has 2 kids and she gets three times the child support I do and I have 3 kids! How is that possible?" or "I know a guy who only pays $20 a week and he has more kids than I do! It's not fair!"  The answer? The mystery known as the Massachusetts Child Support Guidelines.  Feel free to read them in their entirety, but be ready with a pillow and a blanket *just in case* it's not as riveting as you expected.

The biggest reason in the disparity between individuals is  because they have different incomes. (Yes, people make different amounts of money, shocking I know)  The number one factor in child support in Massachusetts is income.  Massachusetts recently went to a shared income formula, so it is the income of BOTH parents that matters.  Expenses, such as rent, mortgage, car payments, credit card debt, do not factor into the child support worksheet at all.  The court requires that expenses be listed on the financial statement everyone needs to file, but outside of cases of extremely low income, expenses are *generally* not considered by the court.  Please refrain from whining about how unfair this is. If you want to whine, whine to your political representative, because that's the law and I'm not Congress.

So the child support guidelines worksheet.  Doing it on the computer is really simple nowadays.  You can find the worksheet on the trial court website, or just click here.  Every field is divided between Recipient and Payor.  At the risk of stating the obvious, the Payor is the person who is paying the child support and the Recipient is the person receiving the child support. All amounts are WEEKLY.  And income is gross income, which means what your paycheck says BEFORE taxes.  (Again, if you are going to whine about how unfair that is, do it to your political rep) If you are paid bi-weekly, you take the amount of your gross income on your paycheck and divide by two. If you are paid monthly, you divide by 4.3 to get the weekly amount.  Income means ALL income.  Rental income, unemployment benefits, social security payments, welfare benefits, and pretty much any other way money that is received by someone. Even contributions from other household members is considered income, so if your (or the other parent's) parents or new spouse are paying for things, that is income.  If someone's job is paying for their car, what that car payment would be if the person was paying it is considered income.  When I say everything is income, I really mean EVERYthing is income.

After income, child care expenses (which would include summer and day camps), health care expenses (what someone pays for health insurance for the child AND the child's uninsured medical expenses) and dental and vision expenses (again, what someone pays for the child's dental insurance AND the child's uninsured dental and vision expenses) are plugged into the worksheet.  These are WEEKLY amounts.  For health insurance, especially if taken out of someone's paycheck, figuring out the weekly amount is usually pretty simple.  Also for regular day care, it is pretty much like figuring out weekly income (if paid bi-weekly divide by 2, if paid monthly, divide by 4.3). For things like uninsured medical, dental and vision expenses, if you know the monthly amount, divide by 4.3 and if you know a general yearly amount, divide by 52.  The same goes for summer camp.  If you (or the other parent) pays for summer camp, take the total amount paid and divide by 52 to get the weekly amount per year.

All amounts entered into the worksheet are what is actually paid by each parent. Although if the children "always" go to summer camp, and the worksheet is being done before the summertime, entering those amounts is generally okay.

The section labeled "Minus Other Support Obligations Paid" can be tricky one.  This refers to amounts paid in the "traditional" manner of child support (a set weekly amount paid in some manner to the other parent for the support of a child or children born before the child subject to the worksheet) but it also refers to informal support provided for other children (not the child who is the subject of the worksheet) living in the home with a parent or voluntarily paid for children living outside the home.  If there are previous children a parent is paying for, run a separate guidelines worksheet (it can be a rough estimate) for those children and enter that amount in the current worksheet for support paid for other children.  For children born after the child who is the subject of the worksheet, other support paid is only for children living IN the home.  If you are paying support or supporting informally other children, you should consult with an experienced family attorney to best determine what amount should be entered on the worksheet.

So, once the top part is done, all you  have to enter is the number of children (line 2a) and the worksheet does the rest for you! The number at the very bottom is the number of child support to be paid per week.

If there is joint physical custody (meaning the child spends equal time with each parent, give or take 1 day), or split custody (where one child lives with Parent 1 and another child lives with Parent 2) then do one worksheet where Parent 1 is the Payor, Parent 2 is Recipient and a second worksheet where Parent 1 is Recipient, Parent 2 is Payor.  Take the final amount from each worksheet and subtract. Whatever the difference is, is paid to the parent who has the lowest amount of support at the bottom of their worksheet.  Note: If the difference is small ($20 or less usually), the parties can just agree, and the judge will probably agree as well, that no support be paid.

As with anything in the family court, it is always easier and advisable to at least get the advice of an experienced family law attorney.  How to determine what is income, what are legitimate expenses and how everything is calculated into weekly amounts can become a complex process.

Bottom Line: Having the worksheet done correctly is in everyone's best interest and can really cut down on animosity between parents, making everything better for the kids involved. And, once a form is filled out incorrectly, it is much more costly and time-consuming to undo it than it would have been to do it right in the first place. So make sure you work carefully and get it right in Round 1.  Hooray!!

The Real Deal Holyfield on Grandparents "Rights"

Ah yes, grandparents. They go by many names, but mostly they are fun, slightly (or not so slightly) meddling spoilers and lovers of small and big children alike.  That fabulosity in the rainbow boots to the left is my Grammy and even though she has always lived in Pennsylvania, and I was raised in New Hampshire, she has been a full-blown force of nature when it comes to love and attention for her grandkids.  In a good way.

But, as we all know, the relationship between grandparents and the parents of their grandchildren is not always lollipops and birthday presents.  Especially when one household becomes two households, or a disagreement explodes into a full-blown family fight, rifts between parents and grandparents can and do occur.  I get calls more often than I would like from grandparents wanting to know what they can do about a parent's cutting off the grandchildren's contact with grandparents.  And the really, really bad news on the legal front is...probably not that much.

Most people in this day and age hear phrases like "grandparent visitation" and "grandparents rights" and, probably due to popular media's para-phrasing of legal doctrines, believe that grandparents have a right to see their grandchildren.  Au contraire, said the U.S. Supreme Court in 2000.  (And yes, this happened 8 years ago, and people still don't understand)  See, what happened in the case of Troxel v. Granville, is that Washington (the state, not the dead president) passed a law that gave grandparents broad visitation rights with their grandkids.  Under that law, a fit parent could be ordered by the court to allow contact between grandparents even if that fit parent objected to the kids seeing the grandparents.  The U.S. Supreme Court took the side of fit parents and held that it violates a fit parent's due process right for the state to intervene in parenting matters and force grandparent visitation.

Well, then the states were stuck deciding what to do with all these grandparent visitation laws that they already had on the books. Some states got rid of the laws and some states, like Massachusetts, kept the laws and left it up their courts to decide how the law could be applied so it would still be constitutional.  And the mess in Massachusetts began...

No matter how fun you think it might be (and trust me it's not), I am not going into the lengthy (and tedious) discussion on what the standard for grandparents rights is in Massachusetts.  It is confusing to say the least, and there are entire seminars and roundtable discussions attended by lawyers AND judges who still can't make complete sense of the Blixt v. Blixt case that supposedly lays out the Massachusetts standard.  If you want to know more, you can read the cases or email/comment about it, but me? I'm going to pull a Palin, go rogue and give you very important options outside of the "grandparent visitation" box. This brings us to the "What is a Grandparent to Do?" section, where I will take the most common scenarios and give what I think is the best option.

What's A Grandparent to Do?

Ok, well first, probably not show off their "crooked finger" like Grammy is in this never-not-funny photo...ok, really though...

Scenario #1: Grammy is your "typical Grammy."  She always sees the kids on holidays and about once every 1-3 weeks for a dinner or family gathering.  Special outings and sleepovers are part of the relationship as well.  Grammy hears that her son and his wife are getting divorced. Wife and Grammy never got along, Grammy is afraid she won't get to see the kids anymore.

Alternate Scenario #1a but same Answer: Grammy's son is having a baby with woman he is no longer seeing. Mother of baby dislikes Grammy and is angry about the break-up. Grammy is upset and concerned she won't be able to see the baby.

Alternate Scenario #1b but SAME Answer: Grammy refuses to listen to her son and daughter-in-laws requests when she is around the grandkids. Parents say grandkid can't have soda, Grammy gives soda. Parents say no TV, Grammy gives TV. Parents raise the child Jewish, Grammy gives him a crucifix for Christmas. (You get the idea) Parents finally get fed up and stop bringing the grandkids around.

Answer #1: None of these is a scenario where grandparent visitation would likely be granted.  First, grandparent visitation does not apply when the parents are still living together! This type of traditional grandparent relationship is a privilege, not a right.  Therefore, Grammy should work on supporting her relationship with her child (which definitely means following the parents wishes).  In the divorce/separation scenarios, the best option for spending time with the grandkids is to see them when it is her son's parenting time. This also works if Grammy has a great relationship with the parent who is not her child and a rocky relationship with her own child.  And, of course, it applies when Grammy is having a difficult relationship with both parents.  Both in tact and newly separated parents need lots of support from family and friends as it is, so inviting them over for dinner (or any event where food is served really), offering to help pick the kids up from school, offering to babysit so parents can get a break, things of that nature, can not only be time with the grandkids but helpful to the parents (so long as Grammy realizes the whole "privilege not a right" thing and follows the parents wishes).  Channeling some of that gift-giving spirit towards school clothes or the cost of sports/extra-curricular activities is also a great way to help a separated(ing) parent (or an in tact family) and spoil the grandkids a little (especially if Mom or Dad would never buy Hannah Montana shoes). ALWAYS  ALWAYS ask or offer your suggestion to the parent first (and out of earshot of the grandkids).  Only talk to your grandchildren about it after the parent has given the ok. Even when it comes to well-intentioned outings and gifts,  parents need  to be a parent and not have their toes stepped on.   With divorcing/separated parents, this is especially true since the parents are in the best position to know how close the dreaded "Spoiled, Unruly Kid Whose Parents Overindulged Him/Her After Their Divorce" Syndrome is looming at large.

And absolutely, Grammy should also stay out of the divorce/separation process!  Following the rule of "If you don't have something nice to say, don't say anything at all" usually does the trick.  Grandparents with good intentions can risk alienating themselves from the children's other parent (or their own child) and *usually* end up making the situation worse.  Also, any badmouthing of the other parent to the children could lead to a court ordering both parent to keep the children AWAY from the grandparents, which is the total opposite of what most grandparents want to happen.

Bottom Line: Communicating with one's own child about time with the grandkids is the number one option for maintaining the grandparent-grandkid relationship. Period. Building and nurturing that primary relationship is the best use of emotional and financial resources for everyone.

Scenario #2:  The grandchildren have lived in Grammy's house with their parents for five years. Grammy has acted as a third parent, acting as a routine day care provider, cooking meals, giving baths, all with the blessing of the grandchildren's parents.  Grammy and parents get in a big, nasty disagreement, parents move out and cut off contact with Grammy in anger.

Answer #2:  First, try try TRY to rebuild/repair the relationship with the children's parents (See Answer #1).  If every possible effort fails, it may be time to consider de facto parent visitation. First, if the parents are still living together, grandparent visitation does not even apply.  However, Massachusetts has a fairly strong de facto parent law. Basically, if a non-parent truly acts like a parent, with the parents blessing, the court may give the non-parent scheduled time with the children.  The facts in this scenario closely match the requirements for de facto parent visitation.  A grandparent in this type of scenario should contact an experienced family law attorney (ahem!) and discuss how to proceed getting time with the kids as a de facto parent.

Bottom Line:  First, try to maintain the relationship with the parents. It's just better for everyone.  If it can't be done, then remember that just because someone is a grandparent doesn't mean grandparent visitation is their only option.

Scenario #3:  Grammy discovers that parents are neglecting the children and using drugs while children are in the house or present.  When she tries to talk to the parents about it, parents cut off all communication.

Answer #3: In this scenarios, the parents are acting as unfit parents. But STILL, try to support and maintain the relationship with the parents. In this case, it could mean an intervention, supporting rehabilitation efforts, family  therapy/counseling, Grammy caring for the children temporarily while the parents get help and definitely, Al-Anon for Grammy (because this is a family process).  If those efforts are truly exhausted, then to the courts we go.

If Grammy is able and willing, she should seek guardianship of the children.  She should speak to an experienced family law attorney  (double ahem!) about filing for this in the Probate Court.  If the children are truly in immediate danger,a temporary guardianship can be put in place on a emergency basis.  Reporting the situation to the Department of Children & Families is also an option, however, an emergency guardianship through the Probate Court can achieve the same protection of the children, and when the emergency is over, the case in the hands of the grandparents, not the state.

If Grammy does not want "full custody" of the grandchildren, THEN this could be a case for grandparent visitation, but probably through whomever the guardian of the children is.  Grandparent visitation does not apply to families where the parents are still living together!! Consultation with an experienced family law attorney is crucial at this point, as care needs to be taken as to what happens to the children with regards to custody.

Bottom Line: Tread lightly.  A family will never be the same after a court case has been filed.  Consulting with a family lawyer does not mean hiring someone to charge into court. If you consult with the "right" lawyer, they should be able to provide you with step by step options before anything is filed in court.  Only when all out of court options have been exhausted should grandparents seek to litigate to see their grandkids.

As always, questions on this topic are welcome via email through my firm's website and the comment section below.  This is an ever-developing, gray and messy area of law, further clouded by misunderstandings in the normal, non-law world. It is also one that hits so close to the heart for so many loving grandparents. Having an experienced family law attorney that not only knows the current state of the law, but also the "life costs" that can be involved in these cases can mean the difference between a separated family and a broken one.

A little Gratitude

Seeing as I had only 2 posts in November (I was the queen of starting a post and not finishing it this month - December resolution, I promise) I'm throwing out a bonus Thanksgiving Day inspired post. It's really original...

I’m Thankful For…

Co-workers who drop everything they’re doing to shove ideas around with me. Yes, there’s some shoving, just of the ideas though… and in a really good way that makes me argue smarter.

Will Ferrell movies that make me laugh when I’m bummed out.

Pop Culture Trivial Pursuit DVD edition

Vanilla Eggnog (the grown-up kind)

My family’s cheesecake recipe and the hand-me-down springform pan my mom gave me to make it in

A 40 pound black mutt who is afraid of a pillow falling off the couch

An 80 lb Weimeraner who carries his food bowl around all day like he’s a starving African child that needs a sponsor

My iPhone. I hate to be so materialistic but this thing is the real deal Holyfield. Like woah.

A mom who forgives me for forgetting her birthday

A dad who cares so much about my mom that he sends me a well-deserved scathing email for forgetting my mom’s birthday

A Grammy who teaches me over the phone how to seal my pie crusts so they don’ t ooze out the side “just like Mimi used to do it”

A brother whose passion for his profession (ski patrolling) is both admirable and inspiring

A brother whose understated sensitivity and bashful sense of humor can bring me (privately) to tears

A boyfriend who has the same qualities I admire and love about my brothers (but not in a weird creepy way).

Friends who will Facebook, Twitter and text me wherever and whenever but still meet me in person for a drink and dance like idiots (quasi-privately) so we all feel better.

A boyfriend who merely grins and shakes his head when I royally screw up the entire universe

My Corolla and its gas mileage that has helped the ruin of my finances rise from the ashes

My Northface Bionic jacket – it’s just really that amazing.

Gossip magazines: my escape from the all-too-often depressing face of the real world

Not having to do dishes (at least rarely anyways)

Learning to golf

Knowing how to ski

Amazing sunsets, anytime, anyplace.

My four-day weekend that I’m going to spend with friends, family, food and football that starts right….now.

Happy Thanksgiving!!!

Potpourri: Appearance Matters & Uncontested Divorce Hearings: What to Expect

Prologue: Appearance Matters

Last Friday, I had a final uncontested divorce hearing in a county where I have never appeared before.  I’ve been doing final hearings since pretty much my first week as a practicing attorney, they are quite simple, very scripted and, while it’s important to have an attorney there just in case anything is filed improperly or the judge has questions (other than the normal questions), in general, it doesn’t take a genius to do a final uncontested divorce hearing. I’ll be giving a quick, basic rundown of a final hearing after this, but what's a Wednesday before Thanksgiving entry without a little unsolicited personal advice?.

 So back to the final hearing in strange court: I was SO nervous. And it wasn’t the strange court, (I’d been to strange courts before and have learned to just ask court staff in a friendly manner), and it wasn’t the case (the other attorney was sending a replacement, my client was fab and the other client wasn't even attending), it wasn’t even the judge (it’s a VERY simple final hearing, not much judge interaction).  It was, wonder of wonders, my outfit.  I like wearing black suits to court, they make me feel confident and lawyer-y, and I don’t know why, but they make me feel like I’m taken more seriously by other attorneys (a blog article for another day). I mean look at how great a black suit looks!! But my only clean black suit (um, yeah, I’m a pretty lazy drycleaner) had somehow been dragged out of the closet by the dog and cuddled in while he slept.  We're talking an 87 lb Weimeraner (the one in the photo above) so this was no small wrinkle a little light ironing could fix.  So my only options were non-black suits.  I went with a tan one, nice enough, Brooks Brothers in fact, gift from my mom, but the whole morning I just didn’t feel ‘right.’ I felt rushed and awkward and nervous, all because of a stupid suit!! And that's pretty much the point of the story.

Moral of this Prologue: Appearance matters. It definitely matters to the people you encounter, but it also matters to you.  If you’re feeling nervous about a court date (this is a law blog after all), a mediation session, or even a consultation with a client or lawyer, DRESS THE PART! It’s an oft-forgotten piece of advice but, as reporter Brian Fantana says in Anchorman: 60% of the time, it works every time.

Ok, so here’s your useful law portion of today’s article. 

WHAT HAPPENS AT A FINAL DIVORCE HEARING

After a divorce has been settled, the parties agree on everything and sign and file all the documents, there is a final divorce hearing. There are essentially "3 Parts."  The order in which these 3 parts occur depends on the judge. Also, sometimes the questions are asked by the judge, not the attorney.  In the wild, wild, west of Massachusetts, the attorney for one party asks the questions but I have found that back east in ye olde Suffolk County of Massachusetts, the judge does the asking.

PART 1: Establishing the Marriage

(also referred to as “Establishing the Breakdown”)

Atty: State your name and address for the record, spelling your last name.

Client: {states name and address, spells last name}

Atty: And were you married to {Spouse’s name} on {date of marriage} at {place of marriage}?

Client: {assuming Atty got names, places and dates correct} Yes.

Atty: And did you last live with {Spouse} in {Place} on {Date}?

Client: {assuming Atty got names, places and dates correct} Yes.

Atty: And on or around {date} did an irretrievable breakdown of your marriage occur?

Client: {assuming what Atty said is true} Yes.

Atty: Can you describe the breakdown?

NOTE: This is NOT the part of the hearing where anyone gives a detailed account of the underlying facts of why the marriage REALLY ended. This is just a BRIEF, cryptic and vague description.

Client: We no longer could communicate and no longer had common goals {or something similar to that effect}.

Atty: And is there any hope for reconciliation?

Client: {if what Atty said is true} No.

Atty: And has there been any previous action for divorce, separate support, annulment or the like?

Client: {assuming what Atty said is true}: No.

Atty: Nothing further your honor.

PART 2: Summarizing the Separation Agreement

The judge then asks one of the attorneys to summarize the Separation Agreement.  If the parties are unrepresented, the judge may summarize it him or herself, or may have already read the Separation Agreement beforehand (this is pretty rare). 

PART 3: Judge's Questions 

(The Colloquy)

After the judge understands the basic elements of the parties’ agreement, (s)he then asks both parties some questions. I will give you the basic questions, but each judge is a little different in their exact wording so this is really just a very simple and basic example of what to expect.

Judge: Did you both read this?

Parties: {if what Judge said is true} Yes.

Judge: Do you understand it?

Parties: {if what Judge said is true} Yes.

Judge: Did you sign it willingly and voluntarily?

Parties: {if what Judge said is true} Yes.

Judge: {if there’s an alimony waiver} This contains a permanent waiver of alimony. Do you understand that it would be very difficult, if not impossible, for either of you to seek alimony from the other in the future.

Parties: {if what Judge said is true} Yes.

Judge: You have each filed financial statements. Have you had the opportunity to look at each other’s financial statements?

Parties: {if what Judge said is true} Yes.

Judge: And do you feel that there has been full financial disclosure by the other party to you?

Parties: {if what Judge said is true} Yes.

Judge: Then I will find the marriage is irretrievably broken and grant you a divorce….HUZZAH!!!

Ok, so the Judge doesn’t really say Huzzah, but I needed a fancy ending. There you have it.

Coming Out of My Social Media Closet

It feels like anyone and everyone is hammering home the idea that social media is THE marketing/networking future. I mean there are TONS of events JUST for social media! Forget that golf club membership, you better have a Facebook page. Don't buy someone a beer after work to get to know them, follow them on Twitter. I don't necessarily buy into the whole replacing personal interaction with social media bit, but it's definitely a force of technology, and of human interaction, that cannot be ignored.

A noticeable fallout of this is that I now know several people who have both a 'personal' and a 'professional' Facebook page/Twitter account. While sometimes it's about privacy (for example, I have a criminal defense attorney friend who would never want her clients to even know she has children, let alone look at 97 pictures of them on Halloween), more often than not, the underlying reason is that people don't want to have to worry about whether they might offend a client/business contact/colleague, etc. with their picture or status or what they're a "fan of".

This is all fine and dandy and I myself, up to now, have had two Twitter accounts (one 'personal' where I mostly follow and retweet sports dudes and comedians, and one 'professional' where I follow lawyers, local people, a few personal friends, etc.) and only a personal and very private Facebook page. On my Facebook, I have pictures of myself in {gasp!} civilian attire (see photo above), have often posted funny movie quotes as my status, largely from the Will Ferrell genre, and I love nothing more than sharing funny websites I find and even some truly hysterical quotes from the website Texts From Last Night (which is, by the way, one of the best ways to spend a 5-minute-let-me-regain-my-sanity break). Up until now, I kept everything private because I was always worried that I "might" offend someone (for example, someone unfamiliar with Ron Burgundy's words of wisdom). I also have, on occasion, posted some photos from some very legal, but a little crazy, nights out with friends that perhaps don't depict everyone involved in the best light.

The problem? I feel like if I set up a 'professional' Facebook now, it will just be a big, fat lie. NEWSFLASH: I AM REAL HUMAN BEING. I am not a 'hard seller' and I don't have over 500 friends on Facebook because of my important and informational status updates that plug my blog and my website (Ha!). The entire point of Facebook and other social media is to share yourself with others, and what am I without my real personality? If this is a real networking/marketing tool, then I have to just put myself out there, the real me, and know that if people don't like me because of my Facebook status, they probably wouldn't like me in "real" life either. I'm sarcastic, light-hearteded and incredibily fallible. I'm also a great lawyer. Why do the two have to be mutually exclusive?

So, after a little light editing of my photo albums (mostly for the sake of a certain favorite new bride friend of mine), I'm doing it. I'm taking my Facebook public. Well, not "public" (internet stranger creepers still skeeve me out) but I'm going to friend and be friended by not just old classmates and personal friends, but by anyone who wants to be "friends" with me. And if they see me playing with my little cousin on the beach or in the costume I wore for a charity event (yeah, I was a Grandma Got Run Over By a Reindeer, so what of it?) or living it up on the ski slopes. So be it. Because it's my real life experiences, my down to earth nature and ability to laugh at myself, that add so much to my legal skills (particularly in an area so entrenched in family entanglements and real life problems) . I would even dare to say that those personal qualities, combined with my legal skills, are what sets me apart as a great attorney (Toot! Toot!... That's me on my own horn, FYI)

It's just too hard to have a "secret","private", personal life that there really wasn't anything wrong with to begin with. I play Wii, I go to Red Sox games, I eat deep fried cheesecake at the Big E, and I have a Guinness after the local breakfast on St. Paddy's Day (along with the entire rest of City of Northampton) why wouldn't this make me a MORE desirable family law attorney? Someone who knows and enjoys what real life is like? Pshaw! Who would want that?!

I guess the biggest reason for me ending this duplicity, is that people can tell when you're fake or holding back and that defeats the entire purpose of building real relationships through social media.

So here I am world! Hope you still like me...

Warning: This May Be Depressing

As you can imagine, when you are listed under "Divorce" in the Yellow Pages, you get a lot of calls from people who are "kind of sort of thinking about" getting a divorce. The caller is usually nervous and has no idea what to even say to me. I usually start by asking them "Where are you in your process? Have you talked about it at all?" The answers then vary (of course), ranging from "We just finally decided to do it last night", "We've been talking about it for months and I'm tired of just talking about it" and the ever-popular "I've been thinking about it but he/she has no idea." Invariably, much of what the caller wants from me "The Big Scary Divorce Attorney" is to tell them when they are ready to get a divorce.

What you're probably expecting me to say is that I can't tell someone when they should get a divorce, that it's a decision only they can make, all of which is [mostly] true. But on the other hand, there are definitely circumstances where What you're probably expecting me to say is that I can't tell someone when they should get a divorce, that it's a decision only they can make, all of which is [mostly] true. But on the other hand, there are definitely circumstances where I can say with confidence to a caller "You have waited long enough, you should really hire an attorney." Some of these circumstances include:

Any situation of physical abuse. If s/he has shoved you, slapped you, held a Kitchen-Aid mixer over your head (true story) thrown things at you, pulled your hair or in any way shape or form lashed out at you in anger in a physical way, you need to sit down with a lawyer. Not just because you need to discuss your options for leaving the marriage (or the relationship if you have kids together), but because most good family lawyers know of great resources, i.e. therapists, support groups, community advocates, etc., and you're probably going to need some of those too.

Most situations of verbal and psychological abuse. If s/he is calling you a 'bitch', an 'asshole', a 'whore', a 'loser' 'fatass' or any other miriad of insults, as their primary form of arguing or having a disagreement, you are in a verbally abusive relationship and you need to either fix it or get out. I said "most" in the title, because believe it or not, I am a big supporter of therapy and I think if BOTH partners want to change the way they argue/disagree, it can be done. But if someone is putting you down and controlling your every move (criticizing your clothes, who you hang out with, checks your call history, freaks out about comments on facebook, you name it), and doesn't think anything they are doing is wrong? It is time to sit down with a lawyer and figure out your options for getting out of the marriage or relationship.

Most situations of lying, cheating and sneaking. This pretty much covers the gamut of things like gambling addictions, drug addictions and cheating. Again, I'm a big proponent of therapy, but if one person is either unwilling or unable (because really, addiction is a nasty disease) to change their behavior through aggressive therapeutic means, then its time to sit down with a lawyer AND in these situations it can be even more important because these types of issues tend to involve stealing/hiding/spending large amounts of money which could (if it hasn't already) devastate your finances if you don't take the proper legal steps/precautions.

And then of course, there is the HUGE gray area of "We just don't know each other anymore." Those are really the cases where, as much as I enjoy telling people what to do, I can't tell you what to do, and only you will know when and if starting the divorce process is right for you. My best advice in those situations is to give marriage counseling the good old college try and if, after trying REALLY HARD, you still feel the same, pick up the phone (or the keyboard) and get in touch with an attorney to see what the next steps may be like.

See? I told you this was a little depressing. But hey, the reality is that not all marriages are happily ever after and not all divorces have to be World War III. We're not ALL The Duggars but we're also not all Jon & Kate. Wow, TLC really has a monopoly on the ups and downs of marriage huh? Someone should start a study...

Jon Gosselin's Lawyer is an Idiot and Old Ladies in Shoes Shouldn't Throw Stones

I get it, most people could care less about Jon & Kate anymore. As a family law attorney, I have to admit, I am both riveted and absolutely disgusted by Jon's new legal team, particularly his new mouthpiece who has previously been suspended from practicing law for being a dirty sheister (that's a legal term), who was all over Fox News today bashing Kate. You can check it out if you want, but it is really incomprehensible.

Here's the short version of what probably happened. During a divorce, no one can withdraw or spend large amounts of money. They can pay their expenses but they can't empty $200K out of the joint account {ahem! Mr. Gosselin...} Jon did this, and had to put the money back and Kate had to provide an accounting for how she had paid the family's "regular expenses." She provided the accounting, didn't have to show for court, and Attorney Crazypants who represents Jon (who may not even be admitted to practice in Pennsylvania...) took the opportunity to mix some metaphors and bash her on the courthouse steps.

And here we have a perfect example of why people hate lawyers. That anyone like Attorney Crazypants are the "face" of the profession on a nationwide scale is about as fair as Ann Coulter being considered the face of all Republicans {shudder}. Also, his accent is annoying and his metaphors are impossible to decipher. He legitimately said that if you live in a glass house, you shouldn't throw a stone because it could bounce back at you...um, yeah, I'm pretty sure that's now why "People in glass houses shouldn't throw stones." There was also some crazy rant about the old lady in the shoe but that one was so mixed up I couldn't begin to try to make sense of it. I guess they skipped basic, common anecdotes in law school.

Stay tuned for more ranting and raving re: the Jon & Kate divorce. What can I say? It's kinda fun isn't it??

Twitter Handles are Serious Business

So in between drafting a pre-trial memorandum and an execution on a judgment (see, I really am a lawyer), I decided I need a new Twitter name. Right now it's my law firm's name because the original idea was we would all tweet from our iPhones when the occasion arose. What really ended up happening was that I did all the tweeting. So now that I've built some relationships on Twitter, it seems like I should just really be myself there. So here's what I'm throwing around so far, feedback GREATLY appreciated because really, it took me around 8 hours to decide on this blog's name and it's pretty lame soooooo....creativity in naming things, not really my forte.

CaffeinatedLawyer (worried people can't spell caffeinated...and it's kinda long)

CoffeenerdedLawyer (still long but solves the spelling problem...plus I think it's kinda cute :)

Alternative: CoffeeNerdedLawyer?

KellyatJTLaw (boooooooooooring...but professional)

AttorneyNeubauer (also boring...and no one can ever spell my last name)

KellysLaw (I AM the law, ha ha)

ImNoNancyGrace (Trying to think of a famous lawyer that I'm not anything like, not really a fan of this angle but I'm grasping at straws here!!)

Alright, so I'm tapped and I have some real work to do today before noon, so I'm putting this out in the Facebook, Twitter, blog world and hoping for the best.