Family Law AdvisorŪ

Volume 2 Issue 5
October/November 1996

Inside This Issue

Return "Fault" to Divorce?


Cohabitation


Contested Custody Cases: Role of the Guardian ad Litem


A Few of Our Favorite Things


Consumer Price Index

Return "Fault" to Divorce?

Dear Reader:

A recent meeting held by the Family Law Section of the American Bar Association stirred the emotions of many lawyers in attendance. Michigan state Rep. Jessie Dalman spoke on her campaign to return "fault" to divorce in Michigan. She believes no-fault divorces lead to an increase in marital disruption. Lawyers generally disagree.

Rep. Dalman also believes custodial parents and children fare poorly in a no-fault divorce situation. She reasons there is no financial disincentive or punishment for marital misdeeds. She also believes parties should participate in mandatory counseling before divorce.

A lawyer from the United Kingdom pointed out that they were abolishing fault divorce and eliminating expensive fault-finding investigations by private detectives and prolonged court proceedings. Rep. Dalman contends Britain's divorce rate will increase upon the elimination of fault divorce.

Whatever the outcome, the discussion highlights the perception held by many people that fault and divorce are like love and marriage: they go together.

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

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Cohabitation

If the possibility of marriage followed by divorce is unacceptable, then cohabitation followed by chaos is even less appealing.

For a host of reasons, many people are living together and not marrying. Nevertheless, they face similar issues in managing their affairs as married couples. Some couples opt for entering into written cohabitation agreements dealing with the parties' rights and responsibilities on such issues as:

• children.
  
• property.
  
• disability of a partner.
  
• dissolution of the relationship.
  
• death of a partner.
  

Best advice: put everything in writing. Get help from your own lawyer before signing. Update the agreement from time to time as your circumstances change and keep it current with the ever-changing laws on cohabitation in your state. The laws are murky and legal standards are uncertain, but lawyers see an increasing number of problems facing cohabitants, so they try crafting solutions for unmarried partners.

Consider using written agreements on the following:

• sharing of major expenses such as mortgage or rent.
  
• parenting plans for biological or adopted children of the relationship.
  
• visitation plans for children with no biological or legal relationship to one of the partners.
  
• health care proxies in case of disability.
  
• a plan for dividing property on dissolution of the relationship or death.
  
• life insurance and other estate planning tools to address financial concerns on the death of a partner.
  

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Contested Custody Cases: Role of the Guardian ad Litem

In a contested custody case Massachusetts judges often appoint a guardian ad litem (usually called a GAL) for minor children. The GAL, a mental health professional or lawyer, "speaks" for the children, and in order to do so, must speak directly with the parents, children, and other people with pertinent information to the case.

The GAL is often appointed at the request of one or both parents. Courts, however, have the power to make the appointment without a parental request. In many cases the parents are ordered to share the cost of the GAL's fees, and in some cases, the court pays, if the parents show they cannot afford the fees.

Perhaps the most vexing question about the GAL, is the scope of the authority vested in the GAL during and sometimes after the court case. Some judges enumerate a list of tasks with explicit authority to carry out the tasks. Even in those situations, parents are often frustrated by the GAL's seemingly fluid role.

If you have a GAL in your case, consider the following:

• be sure both parents, the court, and the GAL know which issues are being presented for the GAL's investigation. Get a court order with specific instructions.
  
• have a clear understanding about the fee structure and what your obligation is for any portion of the GAL's fee.
  
• provide a list of key people for the GAL to interview. Keep it short.
  
• do not use the GAL as your own psychotherapist.
  
• ask for the GAL's standard procedure for handling investigations, which may or may not be in writing. For example, who tells the children about the GAL and what do they tell the children? Will the GAL ask the parents and children to take psychological tests?
  
• be sure the other parent is informed about the GAL's standard procedure.
  
• try to get a firm, but realistic deadline from the court and the GAL for the completion of the GAL's report. These reports take time, but should not take years.
  

For further information, read "Child Psychiatry and the Law," edited by Black, Wolkind and Hendriks for the Royal College of Psychiatrists, 1989. Professional Books, Inc. of 215 California St., Newton, MA 02158 can order books not readily available at local libraries or bookstores. Call 1-800-210-READ, fax 617-630-9396, or e-mail READ9Books@aol.com.

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A Few of Our Favorite Things

"Marriage is a great institution, but I'm not ready for an institution." Mae West

"By all means marry. If you get a good spouse, you'll be happy. If you get a bad one, you'll become a philosopher...and that is a good thing to be." Socrates

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Consumer Price Index

If your agreement calls for a cost of living adjustment ("COLA"), the CPI for all urban consumers increased 3.0 % for the twelve months ending September 30, 1996.

(source: Bureau of Labor Statistics)

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