Local family law attorneys are hoping that the storm has passed. But forgive them if they don’t exhale completely. We are talking about Congress, after all.
The U.S. House of Representatives “got the divorce bar’s attention,” says Jonathan E. Fields. The Wellesley lawyer is referring to the House’s inclusion in its recent tax-reform proposal of a repeal of the so-called “divorce subsidy,” which currently allows a payor to deduct alimony payments from his taxes. While alimony is taxable income to the recipient, that recipient is generally in a lower tax bracket, allowing the two former partners to pay less tax combined than if they were still married.
Or, as Fields says, the current system “puts more cash in the post-divorce pot.”
In a subsequent Senate version of the tax-reform bill, however, the effort to end the divorce subsidy seems to have been abandoned, reports Lincoln practitioner Regina Snow Mandl.
Mandl was so alarmed by the House proposal that she sent out a client alert, highlighting what she considered a flaw in the House bill proponents’ logic.
“This proposal fails to recognize that two households are more expensive than one, and that there were good reasons for allowing the seeming disparity between married couples and those living apart due to divorce,” she wrote.
The House Ways and Means Committee cited fairness as a justification for the proposed change.
“The provision recognizes that spousal support should have the same tax treatment as within the context of a married couple, as well as the provision of child support,” read a portion of the committee’s summary of Section 1309 of the Tax Cuts and Jobs Act, H.R.1.
However, critics characterized the proposal as a thinly veiled money grab, one estimated to generate $8.3 billion in tax revenue over the next 10 years that could help pay for tax cuts elsewhere in the plan.
While some suggested there was also a “pro-family” agenda embodied in ending the divorce subsidy, Fields isn’t so sure, if for no other reason than there are plenty of divorced legislators who would stand to be negatively affected by the change.
In addition to the nature of the proposal, the attorneys were concerned about its timing. The House proposed making the change effective as early as Jan. 1, which Mandl says would have given state legislatures and courts no time to consider an adjustment to the various alimony formulas, such as those in the Massachusetts Alimony Reform Act.
Specifically, §53(b) of G.L.c. 208 provides that “the amount of alimony should generally not exceed the recipient’s need or 30 to 35 percent of the difference between the parties’ gross incomes established at the time of the order being issued.”
Fields says that an unintended — though somewhat predictable — consequence of the Alimony Reform Act passing in 2011 has been that many divorcing couples now tend to settle on an alimony figure of 32 or 33 percent of the difference between their incomes. Baked into the conclusion that such a figure is reasonable is the fact that alimony payments will be deductible.
If representing a payor, “I don’t want a 33-percent order if my client can’t take the deduction,” Fields says.
While Probate & Family Court judges would no doubt adjust to the new reality should it come to pass, Fields suggests a prudent practitioner may feel compelled to provide the court with a tax analysis to illustrate why a level of alimony payments that once made sense no longer does.
For now, at least, such considerations seem destined to remain theoretical, though repeal of the Affordable Care Act looked dead several times this summer, only to have Republican lawmakers attempt to resuscitate it repeatedly.
“I don’t take anything for granted anymore,” Fields says.
Join Jonathan E. Fields on August 22, 2017 from 2:30 PM – 4:30 PM at MWI for a workshop on the new 2017 Massachusetts Child Support Guidelines. Mr. Fields was appointed to the Massachusetts Trial Court Child Support Guidelines Task Force in 2016 to help review the guidelines. The guidelines are updated every 4 years, and the new guidelines have important implications for the calculation of child support, including unreported income and college contributions. Mr. Fields has extensive experience as a family lawyer, mediator, arbitrator and expert in the area of family law. He is past president of the MCFM and is currently on the board of the Massachusetts chapter of the Association of Family and Conciliation Courts (AFCC). He is the author of numerous publications on family law and regularly presents and speaks on family law matters. Read more about Mr. Fields’ extensive family law experience in his bio.
Where: 10 Liberty Square, 4th Floor, Boston, MA 02109
When: Tuesday, August 22, 2017 from 2:30 PM – 4:30 PM
All attendees of the MWI workshop should familiarize themselves with the documents listed on the event webpage. Please visit the event webpage to register and find out more about the event and how to earn extra credits.
Child support guidelines are some of the most important tools available to family lawyers and divorcing parents. Whether you are going to trial or negotiating an agreement outside court, child support guidelines help you to start with a clear understanding of what is expected of you as a divorcing parent.
Jonathan Fields is a family law attorney with extensive experience mediating, negotiating, arbitrating and litigating family law matters, as well as publishing and presenting on matters related to family law. In 2016 he was appointed to the Massachusetts Trial Court Child Support Guidelines Task Force. The guidelines are updated every 4 years, and this year, there are plenty of changes family law professionals and divorcing parents should be aware of, from college contributions to unreported income. Check out the reference guide for the new Child Support Guidelines, or join Mr. Fields at the Child Support Guidelines Workshop at MWI, August 22, 2017 from 2:30 PM – 4:30 PM.
- 2017 Child Support Guidelines
Effective September 15, 2017
- Instructions for Completing the Child Support Guidelines Worksheet
Effective September 15, 2017
- 2017 Child Support Guidelines Chart
Effective September 15, 2017
- Findings and Determinations for Child Support and Post-secondary Education Form (CJD-305)
Effective September 15, 2017
- Report of the 2016-2017 Task Force
- Economic Review of the Massachusetts Child Support Guidelines, 2016-2017
- 2017 Child Support Guidelines Worksheet Sample (CJD 304)
Effective September 15, 2017
This is an edited excerpt by Vicki Shemin in the MCFM quarterly.
It is the true story of a couple that considered divorce, but decided to stay together after drafting a postmarital agreement regarding the parenting of their young son.
Jill and Don wanted to explore alternative dispute divorce options as they believed that their 7- year marriage was irretrievably broken. Arriving at this painful decision was all the more poignant for this young couple since they had a one-year old son.
The manner of a couple’s interpersonal physical proximity speaks volumes about their psychological state of mind. Not only did Jill and Don elect to sit on the same side of the conference room table, they sat so close to one another that their elbows were practically touching. They spoke in hushed and mutually respectful tones and gave the other partner ample time to articulate his and her feelings. Instead of looking at me, they most often spoke directly to one another. As to their communication, the theme most central to both their parallel and collective conversations was their deep love for their son, Alex.
I sensed a distinctive sea change in the couple: perhaps overwhelmed by what actually getting divorced entails, perhaps striking at the heart of any ambivalence they may have felt coming into the process, by the end of the meeting, Jill and Don looked one another squarely in the eye and contemporaneously asked each other – “Is this what we really want to be doing?”
Jill and Don left our office that day very different individuals from the two who had walked in just an hour and a half before. They wanted me to draft a document which would lay out the details of their co-parenting plan for their son if and when the marriage did end in separation or divorce one day. If divorce became a reality; if that day ever came, they did not want to be making decisions concerning Alex borne of spite, anger or vengeance.
Over the months, Jill and Don worked hard on hammering out the details of a Custody and Parenting Agreement which addressed matters such as legal custody and a very detailed coparenting schedule (including summer and holiday schedules), as well as a provision anticipating the use of a Parenting Coordinator as a mediator/arbitrator to facilitate the couple with parenting decisions.
In mid-March, I heard from Jill. The email said: “Don and I are in a good place in our relationship right now, and I feel we will be in an even stronger now that this Parenting Agreement is behind us. We sincerely thank you in advance for your patience and understanding and for showing us there was another way to move forward in our lives.”
In a period of six months, this family had beaten the odds and stayed together.
by Vicki L. Shemin
There is an inescapable fact: the relationship between a divorce attorney and a client is, at best, a business relationship. For too many in the legal profession, that is where it starts and ends. What does that mean for YOU as the client when you are going through one of the most difficult experiences you will ever have to face?
It should invoke a caveat emptor warning because once you sign on; you could be making a deal with the devil (and I don’t just mean your ex-spouse).
Below are 5 tips to help you deal with your divorce lawyer at this incredibly confusing time:
1. Interview, Interview, Interview! I recommend interviewing at least two to three prospective divorce attorneys (I know that it takes a lot of time and energy to do so!). As in any other relationship, chemistry is key. Trust your gut. Does this person seem as though s/he is going to serve your best interests, return your calls in a timely manner, aim to be cost-effective, and make all best efforts to fairly and equitably settle your case? Many lawyers will provide the courtesy of a complimentary half-hour as part of the interview process. It’s free to ask!
2. Got Conflicts? Ask your attorney how well, s/he researches conflicts of interest. It would be terrible to delve deeply into your case only to have your lawyer tell you, s/he can’t represent you after all because a conflict (not previously well-researched) exists. A conflict of interest arises when the attorney or the firm is involved in multiple interests (financial, personal, etc.), any one of which could possibly interfere with the professional’s or organization’s integrity, or even have the appearance of doing so. This may be the case if your spouse came for a brief consult before you did, or if a business with which you, your spouse, or even a member of your spouse’s family may be involved are – or were – clients of the firm.
3. Bait and Switch. When interviewing, ask the lawyer who will actually be the one managing your case on a day-to-day basis. If you sign on with the senior partner, will that lawyer be the one handling everything on your behalf? You may be surprised to learn that more junior staff will be just as knowledgeable, much more accessible, and definitely more affordable. That said, if you find that your case is going to court, you may want the senior partner to be the one going to the mat for you. Ask to meet with the entire potential team before you sign on the dotted line. By the way, also ask if there is “double-billing” if each, the senior lawyer and associate, happen to sit in on the same meeting.
4. Billing Tricks Of The Trade. Ask your lawyer if the firm charges by the ¼ hour or 1/10 of an hour; if driving time is billed; if a retainer is required; whether there are cancellation fees; and if they charge for faxing/photocopying and the like. This will be (or should be) spelled out in your client engagement letter. For example, you can imagine that a two minute call can be billed as either a tenth of an hour or, at a minimum, a quarter of an hour depending on the contract that you have signed. One-quarter of an hour minimum billing units can add up very quickly!
5. Playing Well Together In the Sandbox. Ask if the attorney you are considering hiring knows your spouse’s counsel. It is a well-known fact that attorneys who have a proven history of “playing well together in the sandbox” will likely have a better shot at reaching a mutual accord. For instance, attorneys who are like-minded collaborative attorneys (versus litigation attorneys) may be more likely to go to the same professional meetings, to have served on Boards together, to read each other’s scholarly articles, and to have a proven track record of success in other cases. As we often say around my firm when we have an attorney who does not seem interested in advancing the client’s best interests, quoting Abraham Maslow, “I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.” Look for caring and skilled lawyers who have a specialized toolbox filled with everything they would need to build a protective haven to serve you well and to get you through this challenging time.
By: Jonathan E. Fields
Even with Pfannenstiehl behind us, the complex interplay of the irrevocable trust and divorce continues to vex practitioners. The topic du jour is decanting and divorce — and the SJC just dove right in with Ferri v. Powell Ferri, 476 Mass. 651 (2017).
Before we go further, a quick primer. “Decanting” is the process of pouring assets from an irrevocable trust into a newly created trust. The big question at the heart of decanting and divorce: what if, during (or anticipating) a divorce, the trustee decanted the assets into a newly created trust that was, say, more divorce-proof than the original trust? But, before we examine that issue, what is the law about decanting generally? When can a trustee decant the assets in an irrevocable Massachusetts trust to another trust?
Since Massachusetts, unlike other states, has no decanting statute, we look to case law and, in particular, Morse v. Kraft, 466 Mass. 92 (2013). Essentially, the case involved an irrevocable trust created by Robert Kraft which contained four sub-trusts, one for each of the donor’s sons who were very young when the trust was created in 1982. The sub-trusts were administered by a trustee, Morse, and, under the trust terms, the sons could not participate in any distribution decisions. Now that the children were all in their forties and financially sophisticated, Morse wanted to delegate some of his trustee powers to them.
Since the trust gave Morse no explicit right to decant and Massachusetts has no decanting statute, Morse filed a petition asking the court to interpret the trust’s language as authorizing decanting without court approval. The SJC agreed with Morse’s position – that the trust authorized him to decant.
In its analysis, the SJC reminded practitioners that, in interpreting a trust, the donor’s intent is the paramount consideration. Here, because the trust gave Morse broad discretion to make outright distributions to or for the benefit of the beneficiaries, the SJC concluded that the discretion, therefore, encompassed a distribution to a new trust if doing so would serve the beneficiaries’ best interests. In addition to considering the language of the trust, the Court also relied on affidavits from the donor, the drafter, and Morse to the effect that each intended the trustee to have the right to decant.
Notably, the Morse court put on notice drafters of future, post-Morse, trusts: if you want a trustee to have a right to decant, you would be best served by articulating that power in the trust. With that brief background, let us return to the main issue — decanting the assets during (or anticipating) a divorce to a more divorce-proof trust.
So, let’s dispose of the easy case first: with a post-Morse Massachusetts irrevocable trust without an explicit power to decant, it is likely that decanting would not be permissible.
With a pre-Morse Massachusetts irrevocable trust without an explicit power to decant, we look to Morse v. Kraft. That is, a trustee may well be permitted to decant if the trustee’s discretion is sufficiently broad to make outright distributions to or for the benefit of the beneficiaries, if it is in line with the donor’s intent, and it is in the beneficiaries’ best interests.
The recent Ferri decision involved a Connecticut divorce and a 1983 pre-Morse irrevocable Massachusetts trust that did not articulate an explicit decanting power for the trustee. The trustee decanted to another trust in the context of a divorce. The Connecticut Supreme Court certified three questions to the SJC — the essence of the inquiry for our purposes was that they sought a ruling on whether the trustee had the power to decant per the terms of the 1983 trust.
Reviewing the trust language in detail, which is beyond our scope here, the SJC found that the trustee’s powers were broad enough to encompass the authority to decant. Notable, too, was the SJC’s reliance on the affidavit of the settlor who stated his intention that the trustee had the authority to decant, particularly in light of the pending divorce and the need to protect the trust assets from the wife as a potential creditor. The Connecticut Supreme Court found that because the husband was unaware of the decanting, it did not violate that state’s public policy.
Before divorce attorneys and estate planners get too excited about what they may be able to accomplish for their divorcing clients, such a decanting may not work in Massachusetts. The concurring opinion made clear that whether such a decanting would violate state public policy remains an open question:
Where, as here, the trustees created a new spendthrift trust for the sole purpose of decanting the assets of an earlier trust that, at least in part, would be included within the [marital estate] … [our law] would require us to consider whether the creation of the new spendthrift trust was contrary to public policy.
As decanting becomes more widespread nationwide, it will continue to surface in more of our cases involving divorcing parties. Morse and Ferri provide welcome guidance to the bar– and we await future case law and/or legislation to sharpen the contours. In any event, it would behoove both the estate planning practitioner as well as the domestic relations bar to become versed in the legal trends to best steer our clients down this new path.
* In light of the recent Ferri case, this is an update and revision of an article that originally appeared in the FMQ.
Is alimony a possibility for clients who divorce after age 65? What are the issues in guardian initiated divorces? How to tackle Medicaid planning? These were some of the topics discussed at MassBar Educates Panel, “Gray Divorce: Representing the Elderly Divorce Client”. Jon fields joined elder law attorneys Steven Cohen and Patricia Keane Martin on the panel to discuss the unique issues in representing elderly clients in divorce. With life expectancies on the rise and older people the biggest demographic for divorces, gray divorce is no longer a niche subject. Please click on the link to find out more about the event and MassBar Educates program.
Jon Fields looks forward to attending the AAML’s annual meeting in Chicago. This will be an event packed with educational opportunities, social events and the chance to mingle with some of the nation’s best family law practitioners. Issues of valuation, tax, retirement and demographics will be covered as part of the lecture program. The event will be an opportunity to network with esteemed colleagues at the social events after a productive round of discussions at meetings scheduled all week.
The event runs from November 2nd-5th 2016 at the Renaissance Chicago Downtown.