How To Begin The Divorce Process

Posted on January 31, 2011 by Nancy Van Tine

Hi there,

The new year is a time for change and I think it may be that concept that results in so many folks deciding this is an appropriate time to end their marriages.

This week I have chosen to pull together a group of posts from some of my favorite bloggers that are useful if you are contemplating divorce.

First, from Daniel Clement's blog (one of my favorites) a very thoughtful post about being sure that divorce is the right choice for you. Unfortunately, we have to recognize that only half of you are going to be making this choice, for the other half divorce may be involuntary.

Then from the very useful Ohio Family Law Blog, a terrific post by John Meehling on what to bring with you to the first meeting with a divorce attorney. I would add  that much of this (and more) will probably be requested of you over time by your attorney.  If you don't have this information, don't worry, your attorney will be able, and eager, to get it for you.

Even more important is Daniel Clement's post on what to expect from your attorney.  While what information to bring is sort of commonsense, its difficult to know what to expect from your attorney during your first meeting, and this post explains it very well.  Unless you have been divorced before, you are headed into the unknown when you hire a divorce attorney. We come in all types (just like regular folks) and I think one of the best things you can look for is someone with whom you feel comfortable. The process is long and fraught with emotion, so having your attorney "get it" is a big help.  Of course, she should be very competent too!

Best,

Nancy

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Removal Cases - A Trial Situation

Posted on January 18, 2011 by Nancy Van Tine

Hi there,

I bet that most divorce lawyers and Probate Judges will tell you that among the toughest cases they see are so called removal cases - where one parent wants to leave the state with the children, leaving the other parent behind.  It is now also clear that moving across the state so that parenting is disrupted can also be grounds for application of the removal laws.

If the departing parent is going to a neighboring state this may be something that can be worked out without a trial and a Guardian ad Litem.  However a move beyond a 2 or 3 hour drive can be disastrous to a parent/child relationship.

The reasons for asking to leave (and you must get either written permission from the other parent or a court order allowing the move) can be very valid and necessary as well, a job, a new spouse, familial support all of these can be critical to the moving parent.

Massachusetts handles removal cases in 2 ways based on what the parenting situation is. If the moving parent is the physical custodian, meaning that  the children's primary residence is with him or her then the standard is different from the standard when the parties share physical custody

There are 4 leading cases that discuss removal under Massachusetts law: Yannas v Frondistou-Yannas, 395 Mass. 704 (1985): Mason v. Coleman 447 Mass.177 (2006): Katzman vs Healey, (decided September 7, 2010) and Altomare vs. Altomare, (September 8, 2010).

If the parent seeking removal is the physical custodian then there is a two prong test.  First, the Judge must decide that there is a "real advantage" in the move for the parent seeking it.  This means also that the removing parent NOT be found to be seeking removal just to spite the other parent or make the relationship with the children difficult.  If the court finds there is NO real advantage then the case is over, however this is something generally only reached after trial.  If there is a real advantage then the test becomes the best interest of the children with a great deal of weight given to the fact that their welfare is entwined with that of the custodial parent.  Thus, the court has to consider if the mother has a real advantage most likely the kids in her care will too. 

If the parents have true shared physical custody: not just a recitation in an agreement that the plan is shared physical but an approximately equal division of the time; the standard is much tougher for the parent who is seeking to go.  The real advantage test is gone and both parents have equal rights and responsibilities so the "best interests of the child" focus is on just that.  The court may very well may consider the kid's need for continuity of community to override one parent's desire to move with the child.

All of these are issues if they arise that can frequently make a trial necessary.  They are also possibilities to consider prior to entering a divorce agreement as well.

Best,

Nancy

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Alimony Reform in 2011?

Posted on January 11, 2011 by Nancy Van Tine

Hi there,

Lately, I have been very bad about posting.  I spent the last two weeks in Florida with my grandchildren (and then recuperating from my grandchildren) and although I had lots of good resolutions about posting they seem to have gone the way of my good resolutions about not eating chocolate.

However, here I am back in the real world (glad to be here too!) and it looks like this may be the year that some sensible, real progress may get made in alimony reform.

Whether you are looking to receive, or fear you may have to pay alimony, the uncertainty and inconsistency of alimony awards must contribute to a lot of the fear of the unknown when facing divorce.

I am a proponent of alimony and also a proponent of alimony reform (go figure).  Anyone embarking on a divorce should be able to have a fairly reasonable understanding of what they may pay or receive, and for how long.  Right now that is not the case in Massachusetts.  A number of the proposed reforms have, I believe, been too draconian; however, there is due to be a new proposal out, apparently finding favor with all sides, so stay tuned...

Best,

Nancy

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