Oftentimes parents will separate or divorce with a decent co-parenting work relationship and will leave the language of their parenting agreement/ separation agreement vague on the issue of non-custodial parenting times with language like, “parenting time upon the reasonable agreement of the parties not be unreasonably withheld,” based on the assumption that a good working relationship between them in the present will survive new relationships for one or both of them in the future.

How many divorced couples have you known who go years without custody problems until one of them finds a boyfriend or a girlfriend?

When the refusal of the custodial parent to make the children available for parenting times with the non-custodial parent cause violations of a child custody order or a visitation agreement to occur, the first thing a family law practioner will want to review is the court order creating the parenting plan. If there is no order, a trip back to court will be necessary to obtain one.

In the case of O’Connell v. Greenwood,59 Mass App. Ct. 147, the non-custodial parent came to court on two separate complaints for contempt on avarietyof grievances he had with the custodial parent which included:

• Violations of adetailed schedule of weekly and holiday visits;
• Failure of the custodial parent to notify the non custodial parent promptly when  the child was sick and to give the other access to the child at such times by phone;
• Enrolling the child in school under another sur-name other than the father’s sur-name ( the child’s name on the birth certificate);
• Custodial parent instructing the child’s school administrators not to release the child to the father or share information;
• Custodial parent insisting that the child call the custodial parent’s new husband, “Daddy”

While all of these grievances are serious and indicate a clear and deliberate pattern of alienation of the child from his/her non-custodial parent, the appeals court in O’Connell only found the Defendant/Custodial parent guilty of contempt on the issue of violating the parenting/visitation order between the parties because it was the only clear and specific court order to the Defendant.

The case is a good read for the civil contempt standard in Massachusetts which requires a clear and unequivocal court order (fair notice of the court’s directive) and clear and unequivocal disobedience (undoubted disobeyance), Sachs v. Sachs, 53 Mass App. Ct. 765.

While good parents always communicate around a child’s illness, share information and would never unilaterally change a child’s name or confuse a child as to whom his parent’s are – bad co-parent’s do – often. The trial court hearing these facts responded by finding the custodial parent who engaged in these activities guilty of contempt; the appeals court reversed these findings on the grounds that as these actions were not specifically prohibited in the judgment of custody and visitation between the parents (the custodial parent who engaged in these activities was not put on fair notice that engaging in these activities could put her in contempt of court) and that as “joint legal custodians” as set forth in their agreement, the term itself contained no clear implication against engaging in such conduct – however outrageous.

The court did find the custodial parent guilty of contempt in failing to honor the parenting agreement with the non-custodial parent regarding notice in the event of the child’s illness and observance of the parenting order. At trial, the custodial parent testified that she did not notify or the non-custodial parent that the child was sick or make the child available for a holiday visit because the child was sick. The custodial parent produced a note from the child’s doctor stating that the child should stay home and rest. The trial court, with the appeals court affirming, found that this was not sufficient excuse for disobedience of the court’s order in that the child could have quietly rested just as well in the non-custodial parent’s home during his or her court ordered parenting time.

Once parenting plans start to be flagrantly violated by the custodial parent it is best to head to court immediately for enforcement. The excuses proffered by offending custodial parents range from the non-custodial parent is not paying child support or not paying enough child support to the child is sick, the child is scared, the child doesn’t want to go, the child doesn’t like a new girlfriend/boyfriend, ect.

There are two reasons court intervention is necessary: the first is, passivity in the face of contempt empowers additional contempt; the second is, delaying enforcement of parenting plan violations sends a lousy message to the children impacted by the violations against the parent who just wants to see their children!

Children of all ages look to non-custodial parents to be “on time” and consistent in their parenting. Allowing the custodial parent to even occasionally block or interfere with that parenting time sends a message to the child that the non-custodial parent does not care - and the only way to fight back against this message to the child ( absent going to court ) is to expose the child to the conflict by telling the child why visits were missed.

Emails and even text messages provide an easy way to electronically memorialize events. I was recently approached by a non custodial parent who had accepted being barred from seeing his children for two years. My advice to him was to give written notice to the custodial parent that he intended to exercise his rights to see the children on the next date they would have ordinarily been available to him and, when he was denied, see a lawyer about filing a complaint for contempt.

The writing, email or text can be submitted at hearing as evidence of the clear and unequivocal disobedience of the parenting order.

Civil remedies on a complaint for contempt on the issue of missed visits can include make up time for missed visits andshould upon a finding of contemptinclude attorney’s fees.

If violations continue, they should be documented and additional complaints filed to further illuminate to the court a pattern of parental alienation not consistent with the child’s best interests – if it continues long enough, the court will be forced to evaluate the custodial placement of the children to ensure their continued relationship with both parents.

If you’re not my client, please continue on as you always have, there is no joy like the joy of incriminating a party opponent with pictures and posts they themselves put out there in the public domain; nothing.

If you’re not the soul of discretion twenty four seven, (and c’mon people, who is?), there is potentially damaging evidence out there on the internet about you that you created and you posted.

So giving advice like disable your social networking site is easy advice to give and hard advice to actually take as the proliferation of social networking sites increasingly becomes the public square where many of us interact daily; but the problem with the cyber public square is that it is creating an easily accessed, rich, discoverable record that can be used by potential adversaries in litigation against you if you have not carefully censored yourself prior to posting anything.

If your lawyer isn’t asking you about your social networking habits, (or your spouse’s),  at consultation – keep consulting for a lawyer who does –especially if litigation has yet to commence and you are merely exploring your options and obtaining information about custody law or divorce. The time to clean up your own footprint on the internet, (and to start down loading, copying and saving incriminating materials about a spouse or neglectful co-parent), is before a complaint is filed and served and litigants start discovery and looking over their shoulders and cleaning up their own respective acts.

Checking the internet for the client’s internet footprint, the party opponents and any potential witnesses has become ordinary due diligence for the family law practioner  in accessing you – the client, and your case. Don’t be offended if your lawyer wants certain posts or pictures off of your site, she knows what won’t play well in court and this kind of intrusion is something you should now expect from your lawyer if you are heading to court.

If you’re not willing to disappear from social networking sites, here are some basic tips for eliminating the possibility for having to spend a lot of time in court or at deposition defending or explaining yourself:

1. Eliminate references direct or oblique to drug or alcohol use on your site. If it’s something you like to brag about, it’s probably a problem and a major strike against you when you are making a case for why you should be entrusted with young children;
2. Eliminate posts where you have a drink in your hand or where you are “partying” – no one is going to pay attention to the fact that you testified it is one of the four times a year you actually had the energy to stay out late and have a good time last year  – your choice to post this one tells others something else about you that you didn’t intend;
3. Avoid posts of music or video which are violent or suggestive in nature.
4. If your children have access to your site, do not post derogatory remarks about your ex., your ex-spouse, or the litigation you are involved in.
5. If your children do not have access to your site, do not post derogatory remarks about your ex., your ex-spouse, or the litigation you are involved in.
6. If your children have access to your site, remove anything you wouldn’t want them or their friends to see and don’t post anything that would make another parent question your parenting style.
7. Do not make your friends children or your children’s friends your friends.
8. If you are involved in a relationship you shouldn’t be in, you shouldn’t be posting pictures of you and the other person or information about your status on your wall.

While it may seem like we live in “Jerry Springer Nation”, where anything goes so long as a crime has not been committed, judges still form unspoken impressions of litigants based on traditional values during the pendency of an action that will silently inform their decisions for or against your case. Photos and posts from my space or facebook, (or God forbid dating websites), are highly influential to the Judge that hears your case because she knows the post was created by you at a time when you were by yourself, being yourself, as opposed to the version of yourself you want to present in a courtroom.

Many a family law practioner has exclaimed, “Oh, I love face book,” sardonically in the court house hallway or at deposition when they are confronted with pictures of their client engaged in unquestionably questionable conduct: sometimes it’s so bad, the case settles in the hallway. What’s fun about it for those of us who practice in this area is, it didn’t cost the price of a subpoena to obtain and it only took a few key strokes at the computer to confront an adversary with devastating proof of their own arrogance and stupidity.

Here are a few real life examples:

1. Father seeking custody of son who has remained “unemployed” but posts reference to pot smoking everyday at 4:20 p.m.
2. Father seeking custody of child posting amorous messages to his favorite stripper on her wall – the Father in this case was stupid and wealthy.
3. Mother accusing Father of excessive alcohol use posts pictures of herself and the girls on a “girl’s night out” clearly intoxicated.
4. Mother referring to father of her child as “dirtbag” on her wall.
5. Mother in the midst of custody battle for young children changes status constantly indicating multiple relationships and identifies persons whom the children are introduced to and confused by.

When it comes to social networking it might be best to always remember that anything you post can and will be used against you and to post accordingly.
The current advice on maintaining these sites can be laughable:

1. Don’t send messages or post them when drunk. Apparently some of us never learn this one – for those of you incapable of grasping the wisdom of this, thank you – you provide free entertainment for the rest of us.
2. Remove past posts, pictures or anything you don’t ever want to have to explain later. It’s a simple test – if you’re about to post something that you don’t ever want to apologize for or explain, save your bus fair and delete it.
3. Be judicious in any personal information that you post about yourself. A part of the attraction of social networking is self-promotion – letting others know what you’re up to and that you have a life – however, if you are claiming you are poor in court, don’t be photographed wearing high priced clothing and jewelry in exotic locales; on vacation, the casino, ect. For those of you in the Valley, that also means don’t take pictures of yourself standing in the walk in closet surrounded by shoes. For the guys, sleeve tattoos are not free and if you are claiming she stole your fishing pole, don’t post a photo of you and your girlfriend using it on the boat you claimed you sold.
4. Make your profile private and available to only those people who are your actual “friends”.The reality is, none of what you post is private if you have 375 friends in your network many of whom are acquaintances and who could be “frenenemies” in wait willing to give access to your posts to someone who is looking for evidence.

An old political maxim from the former mayor of Boston, James Michael Curley went something like this,
“If you don’t have to write it, say it. If you don’t have to say it, nod.”

The wisdom of this was, whenever possible; don’t create a record of what you’ve done.

Your lawyer might put it differently like, “pretend everything you write from now on will be read by a judge.”

However you look at it, being aware of the very public nature of social networking sites and the footprint you are making in the cyber public square is critical and should be dealt with before heading to court.

After all, my own grandfather whose education ended with graduation from the eighth grade in 1913, went to work, raised a family, and disposed of his own estate, without consulting with an attorney via a series of inter-vivos joint tenancies with his children that permitted him to completely avoid probate. His children were treated equally, got along well, knew of his plans, and accepted them in advance; however, not all families have it so good and as contests continue to arise out of basic dispositions like joint accounts, I am giving their treatment more scrutiny and asking clients more questions to confirm and sometimes publish their intentions.

In the absence of contrary instruction from client’s paragraphs like the following have become part of my drafting boilerplate:

“I hereby confirm my intention that the bene­ficial interest in all property, real, personal or mixed, tangible or intangible (including joint checking or savings accounts) which is registered or held, at the time of my death, jointly in the names of myself and any other person or persons (excluding any tenancy in common), shall pass by right of sur­vivorship or operation of law and outside of the terms of this will to such person or persons, if he, she or they shall survive me.  To the extent that my intention may be defeated by any law or rule of court, I hereby give, devise and bequeath all such beneficial interest in all such jointly held property to such other person or persons who shall survive me, ”

Although a joint account conclusively establishes the rights as between a joint tenant and the bank, it is always open to the estate of a deceased joint tenant to prove that there was no intention to create a gift, ( the joint interest in the account), to the surviving tenant.” Desrosier v. Germain, 12 Mass. App. Ct. 852, 855-856 (1981); see also Miles v. Caples, 362 Mass. 107, 114 (1972); Ball v. Forbes, 314 Mass. 200, 203-204 (1943) (The contract with the bank takes the place of delivery ordinarily required to complete a gift). For example it can be shown that the original owner did not intend to make a present and completed gift, and merely jointed the account for convenience purposes only, allowing the joint tenant to maintain bank accounts, pay bills, write checks, ect.  see Miles v. Caples, 362 Mass.107, 115 (1972).  The intent of the decedant at the time of the creation of the joint account is a “pure question of fact.” Descrosiers v. Germain, 12 Mass. App. Ct. 852, 856 (1981). Eliminating such questions of fact at the drafting table should be the practioner’s goal.

There are two stages in the administration of an estate where this question of fact can be raised: at the initial probate of the will – in the form of a contest over it, or upon the filing of objections to the Administrators/Executors final account in the estate charging that the fiduciary failed to take charge of an asset that should be included in the estate for distribution to the heirs or legatees.

In my own estate planning interviews with client’s, non-probate assets are reviewed with probate assets to estimate the total estate for potential tax planning and distribution but my questions regarding joint accounts and the testators creation and intent with regards to their ultimate disposition have taken on new seriousness in light of contests over the disposition of these types of assets particularly when the client presents with details like:

• Lopsided account jointing favoring one child over the other children because the benefitted child has undertaken more of the burden of their care than the others and has paid bills for the parent from these assets;
• Joint accounts created with non-family members who have been care takers for the client whether or not they have paid bills with these assets;
• Reports from the client that their children have a horrible relationship and are inclined to quarrel with each other over estate dispositions or any favor granted to one but not the other;
• Second marriages where the adult children of the child object and do not approve of the new spouse.

Typically, the burden on proving a testator’s intent relative to the creation of a joint account rests with the party objecting to the will or the account; however, in cases where the joint account holder holds a power of attorney for the testator, or is a trustee or other type of fiduciary with or for the decedent, the burden shifts to the fiduciary “only where the fiduciary has benefitted in a transaction or actually taken part in the questioned transaction ( the creation of the joint account or nominal consideration transfer), Cleary v. Cleary, 427 Mass.  286, 295 (1998), Rempelakis v. Russel, 65 Mass. App. Ct. 557, 563 (2006).

Heirs or legatees seeking to disturb the ownership of jointly held assets need to show fraud, undue influence or that the non-probate accounts were created for the convenience of the testator only and that the decedent had no donative intent to gift an interest in these accounts to the joint tenant and that the assets should be charged to the executor/administrator and allocated within the probate estate. In my own practice, I have begun, where it is necessary, to add language specifically referencing the accounts and any reasons the client may give for their disposition in the will itself to eliminate any questions of fact.

Where the personal fortunes of heirs in an estate are precarious, battles over seemingly obvious things like the ownership of joint accounts are not rare but probable; particularly where the objectors in an estate view their inheritances as the last great fortunes they may ever receive in their own lifetimes: the results are vicious, expensive, and destructive of future family relationships.  Addressing non-probate dispositions in the client’s will and taking careful notes of their comments regarding them can preserve their intentions, eliminate costly “questions of fact” in court,  and avoid permanent damages within families.

Dissipation in Massachusetts Divorce law is a theory of recovery for a disproportionate division and award of remaining martial property to an aggrieved spouse once the other spouse has taken action to deprive the other of their fare share during the pendency of the action or with knowledge that a divorce action was imminent.

Upon institution of a complaint for Divorce, Rule 411 subjects both parties to the action to the following:

The following restraining order shall remain in effect during the pendency of the action, unless it is modified by agreement of the parties or by further order of the court.

(1) Neither party shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of any property, real or personal, belonging to or acquired by, either party, except: (a) as required for reasonable expenses of living; (b) in the ordinary and usual course of business; (c) in the ordinary and usual course of investing; (d) for payment of reasonable attorney’s fees and costs in connection with the action; (e) written agreement of both parties; or (f) by Order of the Court.

(2) Neither party shall incur any further debts that would burden the credit of the other party, including but not limited to further borrowing against any credit line secured by the marital residence or unreasonably using credit cards or cash advances against credit or bank cards;

(3) Neither party shall directly or indirectly change the beneficiary of any life insurance policy, pension or retirement plan, or pension or retirement investment account, except with the written consent of the other party or by Order of the Court.

(4) Neither party shall directly or indirectly cause the other party or the minor child(ren) to be removed from coverage under an existing insurance policy, including medical, dental, life, automobile, and disability insurance. The parties shall maintain all insurance coverage in full force and effect.

(b) The provisions of this automatic restraining order shall be issued over the signature of the Chief Justice of the Probate and Family Court Department and a copy thereof shall be served with every complaint to which it applies, except if personal service is not made as provided in Rule 4 and service is made by publication, said notice shall include a statement that an automatic restraining order has been issued pursuant to this rule. The provisions of this automatic restraining order need not be reprinted in said public notice.

(c) The automatic restraining order provided for under this rule is automatically vacated upon the entry of a judgment of divorce or separate support.

The lead case in Massachusetts which defines “dissipation” by one spouse against the marital assets of both is Kittredge v. Kittredge, 441 Mass. 28, 803 N.E. 2^nd 306. In the Kittredge case, the Wife complained that her Husband engaged in legal and illegal gambling for the entirety of their marriage and that but for his gambling (and his losses), they would have more assets to their credit for division at divorce. The court in Kittredge refused to credit or refund assets to the Wife for conduct that occurred without complaint during the marriage but it was willing to address gambling losses that continued to occur when the Husband knew the marriage was coming to an end, or had been served with the Complaint for Divorce.

Dissipation in the Kittredge case was defined as spouse’s expenditures for his or her own personal enjoyment at a time when the marriage is apparently coming to an end, from which it can be inferred that the spouse’s expenditures were made in order to deprive the other spouse of his or her fair share of the marital estate.”

Two elements must be proven to support a finding of dissipation or that assets were dissipated: (a.) timing (referring to the time period after it becomes evident that the marriage will not last ) and (b.) intent ( that the expenditure is made for the purpose of thwarting the other spouse’s rights to share of the estate in the impending divorce).

Once a complaint has been filed and served, to the extent that a spouse’s conduct has harmed the martial estate, (i.e. buying a Harley Davidson motorcycle with discretionary cash instead of paying Federal Taxes owed), dissipation may be considered as a factor that would diminish the spouses equitable share of marital property.

Spouses who discover that investment accounts have been drained by their spouse during the divorce action without order of the court need to inform their counsel and file a complaint for contempt for violation of Rule 411. At hearing, the court’s order should be sought for the offending spouse to render accounting of the disposition of the proceeds as a way of establishing the evidence of dissipation prior to pre-trial and trial.

Parties to the divorce action themselves should have no hesitation in reviewing the propriety of any discretionary purchases or expenditures with their counsel including gambling expenditures , (obviously), lavish vacations, entertaining or luxury purchases made with martial assets during the pendency of the divorce.

The simple answer is: no.

The mere filing of a complaint for divorce does not obligate either spouse to leave the marital residence. While the Complaint for Divorce promulgated by the trial court in Massachusetts asks for a separation date, it is not a requirement to have legal standing to maintain an action for divorce.  In the current economy, with gas prices competing with the cost of milk for weekly high’s, absent domestic violence or factual grounds that fall short of domestic violence but that meet the standards under M.G.L. c. 208, sec. 34B, there is no reason either spouse should have to move out of the marital home; you may want to, desperately, but there may be some merit in being uncomfortable for a while and managing the divorce together (if you will) from the same residence.

In my own practice, I have represented couples who, notwithstanding the fact that they were both actively pursuing a divorce and separate lives from each other, remained in the marital residence through the judgment of divorce, sometimes post divorce until the marital home they owned together was sold. Again, absent domestic violence, there are problem solving advantages to this – here are few that I’ve experienced in my own practice:

1. Civility and Respect: Living together through the process forces you both to respect each other and fosters civility or the faking civility until it becomes habit – the sooner you master this, the better: fake it, till you make it. It should go without saying but I have met couples who commence open relationships with others as soon as the complaint is filed; if you have embarked on a new relationship before you’ve ended the one you are still in, civility and respect for human nature command that you do not bring that person to the home and do not introduce that person to your children – not only will it add to your child’s confusion, it will add “atmospherics” to an already difficult process and make it hard for your lawful spouse to simply focus on ending the partnership in a way that is fair and equal;

2. Keeping the Playing Field Level: Neither party feels empowered by living solely in the martial residence (the Mansion) while the other rents a small apartment (the Doghouse). Keeping the playing field level fosters civility and respect and allows the process to move along toward conclusion and doesn’t encourage one party to “drag the process out” at the other’s expense;

3. Discovery of the financial assets and liabilities of the parties is easier: Massachusetts Supplemental Rule of Domestic Procedure 410 breaks out what each party to a divorce action must mandatorily disclose to the other. When both parties are living under the same roof, neither of you is grabbing the tax returns and running, it’s all there in the home office and you can both agree on what you have or don’t have as the case may be. Avoiding costly battles over discovery through attorney’s saves money and moves the process along;

4. Managing Marital Real Estate: Since the fall of 2008, the regional and national real estate market has been in a historic recession. As this article goes to press, market values continue to remain soft or in free fall depending on the location where you own.  I’ve seen a lot bad decisions around the management of marital real estate borne out of the desire to leave the relationship before the partnership business is over. One of the advantages to remaining in the same residence through divorce while the property is marketed and sold is keeping your place at the table regarding marketing strategy, price reductions, or short sale approvals. Leaving one spouse in charge with open ended arrangements regarding the sale of real estate couched in legalese like, “good faith” and “best efforts” usually result in one spouse being in the house longer than the other thinks is appropriate while they both pay for it – one way or the other.

5. Look Before You Leap: A lot of couples end their marriages through a process of “dynamic departure” that can take many forms and involve no planning. An advantage to deciding on divorce and then planning how to manage two families or separate lives from the same household is you can budget for yourselves and the other spouse. There’s no mystery to the money or that in most relationships, absent a prenuptial agreement or significant non-marital assets being owned by one spouse, the division of what you have is done by two. If you have young children, divorce for them doesn’t become real until you physically separate. Seeing your children at different locations while you “couch surf” between friends and family on your way to establishing a new home for yourself telegraphs “instability” to your children and causes them to worry about you and creates anxiety in them. A great aid in managing your child’s trauma is to show them that the two most important adults in their lives can still solve problems for them and meet their needs. Most couples cannot afford their marital lifestyles living separate and apart – there are tremendous advantages in knowing this before you leave and setting your expectations for your new life and new budget accordingly so that the transitions you are taking your children through at least remain steady and consistent.

Finally, if you have left the marital residence you have the right to return to it barring the existence of a restraining order or other court order under M.G.L. c. 208, sec. 34B. The decision to leave the marital residence is just that, a decision and if your spouse has convinced you, you had to leave, you now know otherwise.