Enforcing Visitation When Denied Court-Ordered Parenting Time

When your ex denies you visitation on your court-ordered schedule, it can be an incredibly frustrating experience — particularly if it becomes a pattern. You may be left feeling hopeless and wonder exactly what you can do.

Many non-custodial parents simply give up at this point; however, that is not the solution.

You need to continue to fight for whatever rights the court granted to you through all legal channels that are available. You also need to avoid making common mistakes that could wind you up in trouble.

Document any missed visitation

Maintain a calendar of any time you were denied visitation, no matter he reason. Also keep copies of any correspondence with your ex, which means keeping things civil on your end. Any texts, emails or letters should be kept professional and on topic.

This will help you build a case if you end up in court seeking enforcement of your order, and helps prove that you made every attempt to exercise your visitation rights.

Solve the issue as adults

Ideally, if you and your spouse are committed to your children and effective co-parenting, you will be able to resolve any minor issues before they escalate. Before going to higher authorities, attempt to remedy the issue at the lowest possible rung — between you and your ex.

When there is occasional confusion or conflicting schedules, try to set up additional days to make up for any lost time. This is the most effective method for cutting down on future tension, even though it may be extremely frustrating at the time.

Co-parenting does take flexibility, and if there hasn’t been a history of problems or there is a potential legitimate excuse, at least try to work things out amicably before jumping to the next level.

Send a strongly-worded letter

If your ex will not cooperate in making up missed visitation, sending an official letter is often enough to get them to knock off the impetuous behavior.

Make it clear that you are willing to resolve the issue outside of the courtroom and avoid that extra headache, but any denial of the court-ordered visitation must cease immediately and any missed days must be made up.

This shows that you aren’t going to be bullied and have your rights pushed aside, and also proves that a good-faith attempt was made to resolve the issue without court interference if you eventually have to pursue enforcement.

Use the courts

If you are unable to resolve the issue of your ex denying your parenting time through any other means, you can raise the issue before a judge. This process is a little more extensive, though if you are in the right and your ex is in the wrong, it can be a very effective method for permanently fixing the problem.

Through filing a Motion to Enforce, you are able to ask the court to intervene and require your ex to comply with the order. It is also possible to have the court issue make-up days for any time missed, as well as order the cost of court and attorney fees to your ex if they are found to be guilty of willfully disobeying the visitation schedule.

This is why documentation is crucial to build your case. If you are able to show when the order was ignored, any excuses given by your ex and your repeated attempts to resolve the problem before presenting it to court, you will have a good chance to successfully convince the judge to take action.

Every attempt should be made to keep things between you and your ex as cordial as possible for the sake of the kids, so only resort to the courts after you have exhausted every other available option.

Do NOT stop paying child support

Many people feel that if they are being denied the right to their scheduled visitation, then they shouldn’t have to pay their court-ordered child support. Unfortunately, windmills do not work that way.

Just because your rights are being infringed when your ex ignores a court order does not give you the right to return the favor. You must continue to follow the child support obligation while you attempt to resolve the issues with visitation, and failure to do so can result in serious consequences.

Arrearages can build up, your accusations of contempt against your ex can be thrown right back at you and there is even a possibility of fines or jail time for willful non-payment. It may not be fair, but you must take the high road to succeed in convincing the courts that you are in the right.

Judges have very little tolerance for refusing to pay child support, and without an order stating the obligation has changed, you must follow what is written in your decree.

Do NOT take matters into your own hands

Simply taking the children for any period of time beyond what is prescribed by your court order can have even more serious ramifications. Despite the fact that you may feel you are “owed” extra time due to your spouse’s refusal to let you exercise your visitation, it can be considered parental kidnapping.

You risk arrest and your spouse can make a very strong case to have your visitation modified to require supervision or your amount of time reduced if they decide to call the police and file a motion with the courts.

While many of these options clearly do not offer instantaneous results, it is always in your best interests to work within the bounds of the law.

Child Support After Death: Hindsight is 20/20

You can’t help wondering every now and then: what would happen if my ex spouse just died? While that would certainly make your divorce go away, it would also make your ex’s child support payments go away. Because of that, it’s worth paying attention to the ways you can secure child support after death.

While most people assume that their ex will be around to support the kids until they are grown and gone, life doesn’t always work that way.

If something happens, and your ex dies, your kids are going to suffer. Not only will they suffer emotionally, but they also might take a huge financial hit, too.

Your ex will no longer be able to pay child support. S/he will no longer be able to contribute towards the kids’ extracurricular activities or college tuition. S/he will no longer be around to pay part of the kids’ medical bills. What’s more, if your ex was carrying the kids on his/her medical insurance, that will be gone too.

So who will support your kids after your ex dies?

Answer: You. Just you.

How can you make sure that your kids are not left destitute and that your ex somehow provides child support after death?

In this excellent blog posting, Karen Covey offers 6 tips for making sure your kids are provided for if your ex dies.

I Don't Have to Continue to Pay Alimony If I Lose My Job, Do I?

In every divorce mediation, the payor of alimony is afraid of becoming unable to meet their obligation. This is invariably based on a fear of job loss. 

It’s true: If you lose your job, the obligation to pay alimony doesn’t go away automatically. 

Even if the job loss is through no fault of your own, such as an industry-wide layoff, your obligation remains. You are expected to find a comparable, replacement job as soon as possible. Easier said than done, of course. However, best efforts must be made to secure employment at the same level. In traditional litigation, you would have the option to petition the court for alimony modification or relief. The court would require tangible proof of diligent, exhaustive efforts to secure comparable income — resumes submitted, interviews attended, online job searches completed, etc.

Why does the onus remain with the alimony payer? For a couple of reasons. First, the recipient of alimony is relying, often trepidatiously, on an ex-spouse to provide the regular, necessary support. As goodwill, good faith and good feelings may be lacking, the recipient often must place faith in the strength of the legal system to ensure regularity of payments — which form the basis of meeting his/her own financial obligations. 

Second, as the alimony payor has far more direct control over his or her employment, it is logical that he/she carries the responsibility for it as well. A resentful payor could deliberately sabotage her own livelihood in an effort to unburden herself of a duty she perceives as oppressive and unfair. In order to balance two risk factors inherent in alimony payors — control and high emotionality — the legal system demonstrates more rigidity than flexibility when holding the payor to his/her commitment. 

The good news, as usual, comes in the option of mediation. In mediation, spouses can consider significant changes of circumstances when formulating their settlement agreements, before a crisis ensues. In the event of a job loss, rather than having to petition the court for relief, parties can return to mediation to create an interim support and financial restructuring until gainful employment is restored.

Loss of a job is not going to relieve the payor of an alimony obligation, but in mediation, even post-divorce, we can approach economic vicissitudes in a civilized manner intended to address the needs of both parties.

Can We Use Divorce Mediation to Handle That?

Mediation can handle any of the issues that might come up in your divorce. The only difference between addressing these issues through mediation or through another technique, like litigation, is how they become resolved. Divorce mediation is a process in which divorcing spouses agree to try to settle their conflicts themselves with the help of a neutral third party. Therefore, if you and your spouse know that you want to separate but are having trouble resolving a particular matter, no matter what the sticking point is, mediation can probably help.  Some of the most difficult issues that mediation can help resolve are child custody and parenting, child support, asset division, and alimony.

Mediating Child Custody and Parenting Time

Of all the issues that frequently arise during a divorce, child custody and parenting time are often among the most difficult to resolve. Parents love their children, but during a divorce it can be easy to convince yourself that the other spouse is using the kids as leverage, or will not be a good parent for them as they grow up. When these emotions take hold, it can be difficult to see past them.

Divorce mediation helps quell those emotions with a holistic approach that emphasizes cooperation and mutual respect, rather than inflaming antagonism with the combative tactics often used in litigation. Guiding parents toward making decisions that are truly in the best interest of the children involved is one reason why divorce mediation is often preferable to litigation.

Mediating the Division of Marital Assets

If you and your spouse have been professionally successful during your time together, you will likely have amassed significant assets between the two of you. Who gets what is one of the most challenging parts of a high net-worth divorce, especially when you or your spouse has a strong emotional connection to some of your belongings. Even if the main assets consist of nothing more than a house and a few bank and retirement accounts, however, deciding how to divide them can be tricky if the tension between the spouses is high.

Because divorce mediation focuses on compromise and discussion, rather than a scorched-earth policy of domination, dividing your assets fairly becomes far easier and less stressful. It also leaves you in greater control of the results, letting you keep the things that are the most important to you.

Mediating Child Support and Alimony

Another contentious issue in any divorce is alimony, otherwise known as spousal support. Similarly, child support can spark disagreement and frustration among divorcing spouses. By keeping the focus on the overall fairness of the separation, divorce mediation can handle alimony issues far better than a more combative dispute resolution process. This involves keeping in mind the long-term effect that the marriage had on those involved, and treating alimony according to its intended purpose of providing economic support to a spouse in need. By helping the parties to recognize and remain aware of these concepts, divorce mediation gives spouses a more thorough understanding of the process and lets them use that understanding to come to a collaborative decision that works for both.

With respect to child support, mediation works best by refocusing spouses on the needs of the children, rather than any interpersonal dispute between parents. De-escalating negative emotions and concentrating on the challenging economic needs of children can help unify parents on the shared goal of providing support for the family, even after the spouses are no longer together. The emotions involved in divorce – including each spouse’s anxiety about their individual economic needs after a separation – can draw the focus away from the financial needs of children. At the same time, mediation can assist spouses in understanding that maintaining two households after a divorce may require significant changes to lifestyle and spending habits, as each parent must learn how to get by with less than they may have grown accustomed to during the marriage.

Premarital Cohabitation and Alimony

Although common law marriage is not legal in Massachusetts, it is important to recognize that Massachusetts courts often consider premarital behavior in divorce cases. For example, if a spouse files for divorce after only two years of marriage, the outcome of his or her divorce is likely to be quite different if the parties lived together for ten years before getting married versus a 2-year marriage involving parties who never cohabitated before getting married.

The impact of premarital cohabitation can affect the division of marital assets, where Massachusetts courts are required to consider the length of the marriage when dividing assets. If a spouse can show that the parties shared money and assets before the marriage during a lengthy premarital relationship, this can impact the judge’s “length of the marriage” analysis. However, it is important not to overstate the value of premarital cohabitation in the asset division context. Even a lengthy period of premarital cohabitation may not be enough to generate an equal division of all assets – including those acquired before the marriage – if the duration of the subsequent marriage is brief.

Premarital cohabitation arguably has a bigger effect on post-divorce alimony. Recent Massachusetts appellate decision suggest that courts are increasingly willing to extend the duration of alimony based on premarital cohabitation. Although the premarital conduct of married individuals is easily distinguishable from common-law marriage, these legal trends are nevertheless important. What they tell us is that long-time unmarried partners – i.e. just the sort of folks who might feel they have a common law marriage – may gain some of the legal rights associated with a long-term marriage after being married for a relatively brief period of time.

If you or someone you know could benefit from assistance in decision making during a divorce, contact Falmouth Mediation at 508-566-4159 for a free, no-obligation, private, confidential consultation. We will be happy to discuss the key details of your situation, address any concerns, and help you decide if divorce mediation would be beneficial.

Alimony After the 2017 Tax Code Changes

One of the givens for divorcing couples in the United States has always been the alimony is deducted from the payor’s income and includible in the recipient’s income for purposes of federal taxes. As James Nunn writes in this excellent blog posting, this structure provided some relief by way of a tax break for divorcing couples who would have to use the money that previously supported one household to support two separate households after a divorce. This worked because the recipient was often the lower income earner and would therefore pay less taxes on the income received as alimony than the higher income earner would have had it been includable in their income.

The Massachusetts Legislature used the tax treatment of alimony when drafting the 2011 Alimony Reform Act which stated that alimony should not generally be more than 30% to 35% of the difference between the parties’ incomes.

As of December 31, 2018, the federal Tax Cuts and Jobs Act of 2017 completely upended the way alimony is treated for federal tax purposes and eliminated the prior rule that alimony payments were deductible from the payor’s income and includable in the recipient’s income. This change in the federal tax code has made the percentages in the current Massachusetts Alimony Statute no longer fair or appropriate. The law is, however, still in force and theoretically the Probate and Family Court judges could use it in support of setting an order based on these old percentages.

The current consensus among most practitioners is that the new percentage range is likely somewhere between 23% and 28% of the difference in the parties’ incomes, but it’s not yet clear that the family court judges are in agreement with these parameters.

The Alimony Reform Act also contains language that says alimony should be based on the need of one party and the ability of the other to pay. Despite the fact that need has always been the touchstone of any alimony order the percentage guidelines provided an ascertainable standard that many litigants and lawyers relied on in resolving cases without the need of a trial on the issue of need.

This area of law which was previously settled is now in a time of upheaval and uncertainty. It’s not entirely clear how judges will handle these issues. If you are considering filing divorce or in the midst of a divorce you need to make sure that you align yourself with lawyers and tax professionals who understand the state of the law and how to develop a strategy that will ensure that the result is fair and equitable in light of these new changes.

The Need for Budgets in Divorce Mediation

Budget preparation, even in the best of times, is not exactly an enjoyable task that people look forward to. Yet, it’s something that is absolutely imperative when a couple is separating or divorcing.

As Susan Ingram writes in this excellent article, most of the decisions during divorce mediation - child support, spousal support, equitable distribution of assets and liabilities - have a strong monetary/financial aspect to them. And that’s why it’s essential that couples prepare and review their budgets early in the process. Of course, it’s easier to do that if a couple is already living apart and thus has a clearer sense of what their individual expenses actually are. But even if they have not yet separated their households and finances, they still need to begin the process of projecting what their individual expenses will be.

Keep in mind that these discussions and negotiations take place in a mediation setting between the individual parties — not as a litigated matter in court before a judge. Mediation provides a unique setting that encourages couples to work together for the benefit of the whole family.

Should You Get a Divorce Now or Later?

As I've written previously, the Tax Cuts and Jobs Act of 2017 (TCJA) that took effect in January has added a new urgency for wealthy Americans contemplating divorce.

In this Wealth Matters article in the New York Times, Paul Sullivan writes that several key changes in the law may determine whether it is better to complete or update a divorce agreement by Dec. 31 or wait until the new year.

One of the biggest changes affects alimony, which will not be a tax break for Americans whose divorce agreements are completed or updated after this year. The new tax law is also causing parting spouses to look more closely at benefits for their children and the values of privately owned businesses and partnerships.

There is a lot of money at stake for wealthy couples. Nearly 600,000 taxpayers claimed alimony deductions totaling more than $10 billion for the 2010 tax year, according to the Internal Revenue Service.

For couples who drew up prenuptial agreements, the outcome should they divorce is more uncertain. It is common in prenuptial documents to have a clause saying alimony payments are deductible for one spouse.

Other tax-driven divorce issues require a more careful eye.  One is how private businesses should be valued. This has always been an important component of divorce settlements. But the new tax law increases the cash flow of certain pass-through entities — businesses where the taxes on the earnings are paid by the owner, not the company — in a way that raises their value.

It is also important to look closely at the tax benefits of different assets.  For instance, couples should weigh receiving a house versus a spouse’s retirement plan. Traditionally, the spouse who has custody of the children wants the house. But the new tax changes, particularly in states where deductions for high state and local taxes have been capped, may make the family home less valuable in the long run than a retirement account with a similar value.

The New Tax Code’s Impact on Divorce

Divorces are difficult, but add to them the stress of trying to understand tax law, and the road ahead looks even darker. One bright spot in the pre-2018 tax laws was that a tax benefit existed in cases involving alimony. Under the IRS tax rules before 2018, alimony was tax deductible to the payor, while being taxable to the recipient. But this has changed under the most sweeping federal tax code overhaul in decades, the Tax Cuts and Jobs Act of 2017 (TCJA).

Alimony and Taxes

In instances where there is a sufficient difference in the income of divorcing spouses, alimony may be a part of a negotiated settlement or ordered by a court. Where a high-income earner is paying alimony, they are usually in a higher tax bracket, so the tax deductibility of the alimony can save the payor – and even the family unit as a whole – a significant amount of money. This savings is sometimes so important that parties with potential alimony payments will build all other financial aspects of the divorce around alimony and calculate which scenario will give the best tax break or keep the most money in the family.

For example, suppose William pays Mary $5,000 per month in alimony. Mary doesn’t get to keep $5,000 because it’s treated as taxable income to her.  Based on her 25% tax bracket, Mary’s actual monthly net is $3,750. Conversely, as William is in a higher, 40%, tax bracket, when he writes a check to Mary for $5,000, the deduction translates to an out-of-pocket cost to him of $3,000.

In practical terms, taxable alimony shifts income from a high tax bracket to a lower one.  Uncle Sam has been footing the bill on the $750 differential in tax revenue between the $3,750 that Mary nets and the $3,000 that it costs William. That is exactly what the new regulation in the TCJA is structured to eliminate.

The New Tax Law and Alimony

The TCJA does away with the tax deduction for alimony. Even though the recipient would take the alimony tax free, the total tax bill per family will go up. The payor would pay alimony with post-tax dollars and would no longer have the benefit of that alimony tax deduction. While the recipient’s net income would appear to increase, the higher tax payment overall for the family, in turn, will likely lead to lower alimony orders.

Of course, such concerns presume that parties won’t act collaboratively to obtain and share the best net tax outcome for their families.

Timing is Critical

The new law’s treatment of alimony applies only to spousal support paid under a divorce instrument executed after December 31, 2018 and doesn’t apply to alimony agreements entered before that. This means that people divorced prior to December 31, 2018 will continue to have their alimony payments deductible to the payor and taxable to the recipient. Meanwhile, those divorced after December 31, 2018 will not get that benefit.

Thus, it is critical that parties contemplating divorce, family law practitioners counseling them, and mediators assisting them understand the changing law and can intelligently weigh the risks and benefits of negotiating and filing for divorce in 2018, while the deductibility and taxability of alimony remains in effect.

Although couples may think they have until year-end before they need to worry about the changes, in Massachusetts, once a divorce is finalized by approval of a Joint Petition for Divorce by a Judge, there is still a 120-day waiting period before the divorce is final.  Therefore, the latest day you can have a hearing on a Joint Petition in Massachusetts to take advantage of tax deductible alimony is Friday, August 31, 2018.

Mediate Your Divorce

Finally, before you file for divorce, consider out-of-court dispute resolution before resorting to litigation. Mediation is a voluntary process that gives you and your spouse control over your divorce and its terms. Mediation allows you to privately discuss all aspects of your divorce, go over different options, and decide what is best for you and your family. Armed with the knowledge gained from discussion, you can easily write terms that work for you and give you flexibility when and where you want it.

If you or someone you know could benefit from assistance in decision making during a divorce, contact Falmouth Mediation at 508-566-4159 for a free, no-obligation, private, confidential consultation. We will be happy to discuss the key details of your situation, address any concerns, and help you decide if divorce mediation would be beneficial.

July 16, 2018 UPDATE

Recently, a client's attorney advised him that, contrary to my writing that the latest day you can have a hearing on a Joint Petition in Massachusetts to take advantage of tax deductible alimony is Friday, August 31, 2018, "only the judge's signature is required before the December 31, 2018  deadline, and the waiting period could roll into 2019 without affecting the tax deductible alimony payments."

I believe that the confusion, if you will, is because the IRS has not issued specific guidance on how they are going to interpret the language of the Tax Cuts and Jobs Act of 2017, specifically the language around alimony. 

The law says “ … divorce or separation instruments that are executed after December 31, 2018.”  Fellow mediators and financial planners that I know and trust have interpreted “executed” as meaning “come into legal existence due to a court order.”  Thus, because of the waiting period in Massachusetts (which, by the way, differs from state to state) they have counseled that the divorce must be final by December 31, which means signed by a judge by August 31.

In the absence of guidance from the IRA I am taking a conservative approach in that I would much prefer to be positive that decisions my clients make will hold up to an IRS decision than to hope that they will. 

Mediating Your Alimony Agreement - Part 4

This week I'm writing a series of blog postings on mediating your alimony agreement.   Yesterday I wrote about how alimony is supposed to work.
 
Alimony Solutions Through Divorce Mediation
 
Although alimony can be emotional, it is also an area that greatly rewards creativity when crafting settlement solutions. Below are just a few of the custom solutions a mediator can help divorcing spouses reach to resolve alimony:

1. Alimony buyouts – In many cases, parties can avoid alimony payments by adjusting the division of marital assets to provide the would-be alimony recipient with a larger share of assets in exchange for waiving the right to receive alimony in the future. Negotiating a fair buyout is an area where an experienced mediator can assist. Calculating buyouts often involves examining how much alimony a spouse could theoretically receive under the ARA, then generating a buyout based on the risk/reward between the certainty of a lump sump buyout and less certain alimony payments made over many years.
2. Child Support vs. Alimony – In cases with unemancipated children, child support and alimony are often competing issues. Depending on how much alimony a spouse could be theoretically entitled to under the ARA, versus how much a party may receive under the Massachusetts Child Support Guidelines, many mediated divorce agreements include custom solutions that balance alimony and child support in the most advantageous way possible.
3. Tax Deductibility – Starting in 2019, alimony will no longer be tax deductible for the paying party. The loss of the deduction will have a significant impact on alimony negotiations – and also creates a race to the finish for spouses seeking to take advantage of the deduction before 2018 ends.

Divorce mediation is uniquely suited to resolving alimony issue because mediation is designed to overcome strong negative emotions, while focusing on creating custom solutions that fit the real-world needs and interests of each spouse. Despite the emotional weight, alimony issues are often best resolved through creative settlements in which each party trades the uncertainty of litigation for a predictable compromise.

If you or someone you know could benefit from assistance in decision making during a divorce, contact Falmouth Mediation at 508-566-4159 for a free, no-obligation, private, confidential consultation. We will be happy to discuss the key details of your situation, address any concerns, and help you decide if divorce mediation would be beneficial.

Mediating Your Alimony Agreement - Part 3

This week I'm writing a series of blog postings on mediating your alimony agreement.   Yesterday I wrote about how alimony is supposed to work.

Discussing Alimony Can Be Emotionally Tense

Unfortunately, the issue of alimony payments can cause emotional tension between spouses because the amount paid – or whether alimony payments need to be paid at all – is determined by factors that may have led to the divorce in the first place. These factors under the ARA can include:

• The current or the potential income of each spouse,
• Contributions, both economic and non-economic, to the marriage,
• The marital lifestyle and the ability of each spouse to maintain it after the divorce, and
• Lost professional opportunities due to the marriage.

Each one of these is a potential landmine for disagreement and negative emotions, because they are often the very source of the disputes that led to the divorce, and now they have to be distilled into a dollar amount for the purposes of support payments. Alimony is also often complicated by the feelings each spouse has how the marriage ended. If one spouse feels he or she dutifully stuck through the marriage – through the good times and bad – only to be left by the other spouse, that is likely to affect both spouses’ perspectives on alimony.

In the end, alimony is highly symbolic. It represents the sacrifices made by both spouses during the marriage. What each spouse gave up, what each spouse put in. A lower-earning spouse may feel he or she sacrificed his or her career for the family, only to told they must fend for themselves financially, long after their professional opportunities dried up. A higher-earning spouse may feel he or she spent the entire marriage supporting the financial needs of the other spouse, only to find that he or she must keep paying – even if lower-earning spouse was the one who chose to end the marriage and file for divorce.

Divorce Mediation Keeps the Focus on the Future

It is very easy, and all too common, for alimony discussions to focus on the past. If one spouse sacrificed professional advancement to enable the other spouse to climb the corporate ladder, the alimony discussion may cause lingering resentment to resurface.

Divorce mediation minimizes these conflicts by keeping the focus on the future, not on what has already been said and done. The whole point of alimony and spousal support is to ensure that both spouses have some financial stability after the divorce.  Divorce mediation recognizes that alimony is not about retribution, but rather making sure that both spouses are able to live comfortably in their post-divorce life.

Tomorrow I'll write about alimony solutions through divorce mediation.