Dear Reader: Several weeks ago, Kato Kaelin testified about his conversation with O.J. on the afternoon of the double homicide. Kato explained O.J.'s displeasure with Nicole when she refused to allow him to see his daughter after the now infamous dance recital. Lawyers would ask, "Did the visitation schedule provide for the requested visit?" But this question misses the point. If denying visitation, even if legally justified, sets off a violent reaction, the underlying question is why? The answer may be found in society's increasingly negative view of fatherhood. Policy makers should consider linking visitation and support to parenting classes to sensitize parents to the importance of children having two involved parents. Starting July 1, four Massachusetts counties will require parenting classes in all divorces involving children. Critics suggest that current caseloads make this holistic approach impractical, believing it more expedient to control people with force. But force often backfires--we predict that the rate of domestic violence (and non-support) will continue to increase so long as society diminishes the importance of fatherhood. Sharyn T. Sooho Steven L. Fuchs Law Offices of Sharyn T. Sooho Two Newton Place, Suite 200 Newton, MA 02158-1634 voice: (617) 969-1400 fax: (617) 964-1694
Divorce, like politics, is local, which means that state law controls divorce proceedings. Creative divorce lawyers, however, now look to federal courts when tracking hidden assets by using the Racketeer Influenced and Corrupt Organizations Act (RICO). Prohibited activities include conspiracy to commit fraud. If found guilty of violating the civil RICO act, a paramour or errant spouse could be forced to pay the injured spouse treble damages. In a recent case, the wife, Arlene Farkas, sued her husband's girlfriend, Dolores D'Oca in federal district court for 18 million dollars. Arlene claims her husband Bruce transferred millions of dollars to Dolores. The federal court action was suspended until Arlene and Bruce complete their divorce case in the New York state court. Legal observers doubt the federal court's willingness to entertain these cases, but the threat of RICO may prove effective at the bargaining table.
After filing your divorce complaint, you may request court orders
at a motion session of the Probate and Family Court. Judges issue
temporary orders on matters such as custody, visitation, and
support, but these orders do not become final until trial or
settlement. In the meantime, temporary orders serve as guidelines
for conducting daily life -- questions about the division of
marital assets are deferred for resolution until trial.
During the motion session, in contrast to a trial, you will be
allowed to speak informally (not under oath), but not to testify
or cross examine witnesses. Your lawyer does most of the speaking
-- giving the basic facts of your case, and making the request
before the court. Typically you find dozens of people waiting for
the judge, so each case is allotted about ten or fifteen minutes.
Many judges send cases to the court's family service office before
they hear the lawyers' arguments. The office serves as an in-house
mediation service staffed by court personnel called Family Service
Officers or Probation Officers. Trained as mediators, these court
officers are familiar with the issues, and well acquainted with
the judges. Mediation sessions often lead to agreements
("stipulations"), but if the parties cannot agree, they see the
judge. Judges often rely upon the Family Service Officer for a
recommendation, so it pays to listen carefully to the officer.
In 1984, the federal government required all of the states to implement child support guidelines for welfare recipients. As time passed those guidelines were implemented across the board in all cases involving child support. One extremely useful component of the guidelines is the provision for a wage assignment order directing employers to withhold child support payments and send payments to a designated recipient such as a custodial parent, the court, or a state agency. The paying parent may be a responsible individual who would never miss a payment, and the recipient parent may report honestly all payments received, but the wage assignment eliminates potential conflict by using a neutral third party to implement the paying and reporting of payments. Few, if any, employers impute bad character to an employee paying child support via wage assignment, and the courts routinely issue orders without finding fault. Wage assignment orders are appropriate for salaried employees, but do not work effectively for the self-employed or people in cash businesses.
(Interview with Janet Weinberger)
If a couple uses mediation, does each party need a lawyer?
Unless a divorce is very simple (following a short marriage
without children and with minimal property), mediators generally
recommend that each party consult with a separate lawyer.
Why is it important to have a lawyer in addition to a mediator?
The mediator's role is to help the parties reach a mutually
acceptable agreement. A separate lawyer's job is to look out
solely for the interests of the particular party who has
consulted him or her. The role of the lawyer includes:
(1) providing legal advice about a realistic settlement range;
(2) suggesting settlement options; and (3) reviewing the
agreement to make sure it meets the needs of the client and
will be approved by the court.
Doesn't having a lawyer defeat the whole purpose of using
mediation?
No, not if each party's lawyer understands and supports the
mediation process. It is important to understand that the
role of the lawyer in mediation is not the same as in the
traditional adversarial process. In mediation, the lawyer
acts only as a consultant or "coach" to the party;
the parties themselves negotiate their agreement.
At what point in the process should a lawyer be consulted?
Many couples in mediation use lawyers only to review the
agreement at the end of the process. However, waiting until
the conclusion of the mediation to consult with a lawyer can be
problematic. At that point the couple is quite invested in the
agreement, making it difficult to re-negotiate the agreement if
major concerns are raised by either or both lawyers.
Janet Weinberger is an attorney who practices divorce mediation
in Newton. A former president of the Massachusetts Council on
Family Mediation, she has graduate degrees in both law and
social work.
Federal law gives preferential treatment to women and minority business owners. If you or your spouse are minority certified, a sale or transfer to non-minority owners eliminates these benefits and impairs the company's competitive edge. These legal transfer restrictions may reduce its value. The federal government also monitors transactions involving agricultural land, historic buildings, aircraft, mining leases, certain currency transactions, antiquities without export certificates, yachts, copyrights, patents, broadcast licenses, insider stock, and so forth. Your lawyer should review every document involved in the division of assets to ensure that no transaction between husband and wife violates any federal restriction. Also, when valuing marital property, make sure you make adjustments based on these special features created by federal law.
"An estimated 87 percent of children in homes with domestic violence witness that abuse. There is no doubt the children are harmed in more than one way -- cognitively, psychologically, and in their social development -- merely by observing or hearing the domestic terrorism of brutality against a parent at home." --Domestic Violence on Children: A Report to the President of the American Bar Association, page 1, August 1994, citing Adele Harrell, National Council of Juvenile and Family Court Judges, A Guide to Research on Family Violence, page 28 (1993).
Just released, Fatherless America by David Blankenhorn, challenges
the conventional wisdom of modern thought. He attributes the
moral decay of our society ("boys with guns and girls with babies")
to divorce and out-of-wedlock births -- the systematic,
politically correct disregard of fatherhood's importance.
While Mr. Blankenhorn takes some controversial, even extreme
positions, his case studies and empirical data cannot be ignored.
The book is must reading for any father contemplating divorce or
facing estrangement from his children, and for any mother who
places little value on fatherhood.
"It's really lawyers that make divorces nasty. You know, if there
was a nice ceremony like getting married for divorce, it'd be
much better."
-- John Lennon, 1971
"It is better to have loved and lost, but only if you have a
good lawyer."
-- Herb Caen, columnist
Quotations excerpted from I Do to I'll Sue by Jill Bauer.
If your agreement calls for a cost of living adjustment ("COLA"),
the CPI for all urban consumers increased 2.9% for the twelve
months ending March 31, 1995.
(source: Bureau of Labor Statistics)
* Divorce and Social Security * Domestic Torts * Guardians ad litem