Should you Designate a Guardian in your Divorce Agreement?

Many divorcing parents put their estate planning issues on the back burner as part of their post-divorce “to do” list. Divorcing parents with minor children or children with special needs, however, may wish to include a guardian nomination provision within their divorce agreement. Guardian nomination provisions are not required by the Court as part of the divorce agreement, and are therefore seldom seen, but having the conversation prior to the divorce and memorializing the couple’s agreed-upon wishes is an easy way to protect the children from a potential nightmare down the road.

Most divorcing couples are primarily focused on the immediate issue of transforming a single family unit into separate lives: division of assets and liabilities, transitioning to two households, and creating the parenting plan. These issues contemplate the parents living apart, with the issue of the death of one parent arising primarily in the context of a triggering event for the termination of financial support.  The care of the children in the event of the death of both parents is usually not part of the typical divorce discussion.  In out-of-Court divorce processes such as Mediation or Collaborative Law Practice, these types of additional discussions are encouraged.

So what happens to the children if both divorced parents die?  As with an intact family, the parents’ relatives would probably go searching for a Last Will and Testament to see what the guardian designations are.  With a married couple, whose estate planning was likely done together, the guardian nominations would be the same in both Wills.

For divorced parents, who each have their estate plans prepared separately post-divorce, the list of guardians in each Will may not overlap.  Divorced parents frequently nominate guardians only from his or her own side of the family.  There may be little or no discussion with the ex-spouse about who should raise the children.  Differing guardian nominations can lead to a contested guardianship, including litigation, lawyer fees, and the time and expense associated with a contested Court process.  Worst of all, after the child has lost both parents, the child's relatives are at war with each other.  Their relationships may be irretrievably destroyed, and if no temporary guardianship is allowed by the Court, the child may remain in DCF custody and placed in a foster home pending the outcome of the guardianship case.

While this worst case scenario may not occur in every case, the potential for it is there if divorcing parents do not take the time to jointly consider who will raise their children if they are both deceased (or otherwise unavailable).  Adding a clause to the divorce agreement to nominate guardians would help avoid the possibility of a contested guardianship.

Whether the divorce agreement includes a list of specific names or merely states the parents will confer post-divorce to agree on the nominees, the type of guardian nomination provision is far less important than the fact that there is one at all, demonstrating that the parents have contemplated the options for who will raise their children in the event they are not available to do it themselves.

Choosing Guardians for Minor Children Part 3: In the Context of Divorce

Sometimes my estate planning clients are divorced with minor children and are not on friendly terms with their former spouses. These are four frequently-asked questions about choosing guardians which arise in this context: “Do I have to name my former spouse as a guardian?” “Can my new spouse be appointed guardian?” “What if I have a restraining order against my former spouse?” “If my former spouse is the custodian of our minor children, will s/he have access to our children’s money?” Here are some of the initial issues we discuss relating to these questions.

1. “Do I have to name my former spouse as a guardian?”

In the event of the death of a custodial parent, the surviving former spouse would automatically become the sole custodial parent, regardless of whether the former spouse is nominated as a guardian. The exception to this rule is if the former spouse is deceased, incarcerated, determined legally unfit, or if the former spouse’s parental rights were otherwise terminated or voluntarily relinquished. The surviving parent is just that, a parent, and while being a parent encompasses the rights and responsibilities that a guardian has, the surviving parent would be known as the minor child’s parent, and not as a guardian.

This does not mean that a client cannot or should not include guardian nominations in his or her Will. The language of the guardian nominations can be tailored to recognize the position of the former spouse within the progression of custodianship of the minor children, and can add contingent guardian nominees in the event the former spouse is or becomes unable or unwilling to assume custody and care of the minor children.


2. “Can my new spouse be guardian?”

The former spouse’s parental rights would supersede a guardian nomination of a client's new spouse, even if the children’s primary residence is with the client and new spouse. This means that the former spouse would automatically become the custodial parent regardless of whether he or she is nominated as a guardian. If the former spouse is deceased or found unfit or voluntarily relinquished his or her parental rights, the Court can then look to other guardian nominations. In these circumstances, it is possible that a new spouse might be named guardian, but not because the new spouse has any inherent right to assume custodianship of the children.


3. “What if I have a restraining order against my former spouse?”

The existence of a restraining order or abuse prevention order does not automatically preclude the former spouse from becoming the sole custodial parent after a client’s death. It will depend on several factors, including whether the restraining order or abuse prevention order includes provisions regarding the minor children, and the status of the former spouse’s parental rights.


4. “If my former spouse is the custodian of our minor children, will s/he have access to our children’s money?”

It depends. Without any estate plan in place, if a former spouse becomes the surviving custodian of a client’s minor children and the client did not remarry, there is a good chance the former spouse will have access to the client’s estate assets which are left to the minor children. If this issue is a concern, it is prudent to establish an estate plan that will ensure that the estate assets are used in the desired manner and managed and distributed by a trusted individual. Some clients choose to establish trusts for the benefit of their minor children just for this purpose.

These short responses are meant to provide initial discussion to some of the questions that frequently arise regarding nominating guardians in the context of divorce. Every client’s family situation is unique and warrants individual analysis and planning for that specific estate.

Choosing Guardians for Minor Children Part 2: Factors to Consider

There are a host of factors that might be considered in choosing guardians for a minor child.  Not all of the factors and questions raised below will apply to all families or be given the same weight, but they are mentioned as a means to provide some ideas and a starting point to think about what is important for each child when deciding who should be nominated as guardians.


1.  Geographical Considerations

If there would not be the possibility of a nominated guardian moving into the child's home, then the guardian's location of residence may be something to consider.  The level of relocation difficulty will depend to some degree on the age of the child, since infants, toddlers, and elementary school children may be more "portable," whereas high schoolers may feel more interwoven into the fabric of their friends, school, extra-curriculars and community, and less enthusiastic about starting over elsewhere.  Also, does the child receive certain accommodations for a learning disability or other special needs from the current school system?  Would these or comparable accommodations be available in the guardian's community?

Relocating can be more of a challenge if the nominated guardian lives out of state or even in another country.  Does the child understand or speak the predominant language of the country?  Where does the guardian live in relation to the child's other relatives?  Would the child be able to maintain meaningful relationships with his or her other relatives from the guardian's location?  If there will also be a trustee of a trust for the benefit of the child, is it important in the particular circumstances for the guardian and trustee to know each other or to live in the same community/state/country?

For a family with a large number of children, it may not be possible for any potential guardian to house four, five, six or more children at their location.  While not ideal, sometimes siblings might need to be split up into more than one household.  If this situation occurs, then how close do the nominated guardians live to each other?  Do they know each other?  How able and willing would they be to support the siblings in spending time with each other?


2.  Physical Considerations

Would the nominated guardian's household be able to accommodate taking on the child?  If the guardian needed an additional bedroom, would it be possible for the guardian to use existing space or would the guardian need to consider moving to a larger home?  Does the child have any physical limitations or special needs that would require specific accommodation, such as a wheelchair ramp? Would the child need a bedroom on the entry level floor?  If there are financial resources available for the benefit of the child, it might be possible to partially or fully fund an access ramp, conversion of a room to a bedroom, or an addition to the home.  However, this would probably not be possible if the guardian lives in an apartment, condominium,  town house, or duplex (semi-detached), where there would be restrictions or prohibitions on adding to or changing the building structure.

Would the child be bringing the family pets with him or her, and does the guardian have an allergy to the pets?  Are pets even allowed at the guardian's residence?  Or in the reverse situation, does the child have an allergy to the guardian's pets?  Would the guardian be able to care for the child if the child has specific medical conditions, like juvenile diabetes, asthma, or a diagnosis along the Autism spectrum disorder?  Is the child or the guardian a vegetarian or vegan, or does one maintain a Kosher household or have other specific food restrictions?

Are there other children in the guardian's household?  How similar or disparate are the guardian's children from the child in age?  How welcoming or accepting might the guardian's children be to the child?


3.  Developmental Considerations

Nominated guardians should be reviewed every few years because different individuals may make better guardians for the child depending on the child's developmental stage.  Some guardians might be perfect for infants and toddlers, while others might not have the same affinity or availability for younger children.  What is the nature of the values in the guardian's home?  Are they similar to the parents' values?  Would there be religious upbringing?  What kind of involvement would the parents and guardian anticipate the child having in the religious community?  With the child's loss of his or her parents, would the guardian be able to provide the emotional support the child will need?

There may also be changes in the guardian's life that might make the guardian a better or lesser candidate.  Since nominated, has the guardian married?  Divorced?  Separated?  If the guardian has recently divorced, he or she may not be financially or emotionally positioned to assume responsibility for the child.  Does the guardian have his or her own children with special needs?  Has the guardian remarried such that it is a blended family where the guardian's spouse's own children will need to live in the household on a regular basis?


4.  Other Considerations

Is there great financial disparity between the child's family and the guardian's family?  If the guardian's family has significantly lesser means, will this cause hostility or resentment?  What if the child has financial resources available to send him or her to private school but this is not a possibility for the guardian's children?  Is it a situation where the child's parents attended college and so they expect the child to also attend college, but the guardian and the guardian's family do not have the same expectations for their own children?  Or the reverse, if there are not enough resources from the parents to pay for the child's college education, is the guardian expected to help pay for this?

If there are special desires the parents have for the child, such as sending the child to a particular overnight summer camp, or to annual family reunions with the child's family in another state, are these activities or events that the guardian will be able and willing to support?



All of these considerations are just that, things to consider.  No guardian will be able to exactly replace the home and parents the child lost, so the key is to choose the guardian who at present and for the next few years would be available and willing to become the child's caretaker as best possible, taking into account the child's needs, the parents' values and wishes, and the situations of the nominated guardians.

Choosing Guardians for Minor Children Part 1: How and When to Nominate

I am often contacted by first-time parents looking to set up an estate plan who have not yet considered or nominated legal guardians for their minor children.  These are some of the common questions these clients have.


1.  "What is the guardian responsible for?"

The guardian is responsible for providing caregiving and the legal responsibilities for the minor child.  This usually means the child will go to live with the guardian at the guardian's home, although I have had clients who make arrangements and provisions to allow the guardian to move in with the child so the child will have as little disruption as possible.  The guardian is responsible for ensuring that the child's medical, educational, and general well-being and developmental needs are taken care of.

The guardian is not necessarily responsible for managing any assets that may have been left for the benefit of the child.  If there are assets that have been left in trust for the benefit of the child, the trustee will be responsible for managing and distributing assets for the child.  In other circumstances, a conservator may be appointed for the child, whose sole role is to manage and distribute assets for the benefit of the child.  Both the guardian and conservator are Court-appointed positions which are overseen by the Court.  It is possible that the guardian and trustee, or guardian and conservator, may be the same individual, but not necessarily.


2.  "What happens if I die and do NOT nominate any guardians?"

The answer to this question depends on the status of the remaining family structure.  If the parents are married and one parent survives, the surviving parent automatically retains custodianship of the children.  This is also true for unmarried parents, as long as the surviving parent was the biological, adoptive, or adjudicated parent of the child.  For both married and unmarried parents, the surviving parent must also not have been found legally unfit or have some other legal impediment encumbering his or her ability to parent, such as incarceration or an abuse prevention order to protect the child.

If both parents are deceased, the minor child may have other relatives or close family friends who petition the Court to be appointed guardian.  If no one steps forward, the Department of Children and Families will step in, at least temporarily until a guardian is appointed by the Court, and in the event that no guardian is approved by the Court, the child may be placed in foster care.


3.  "How can I nominate guardians and how many should I nominate?"

The nomination of guardians is typically included in a Last Will and Testament, but could also be its own document.  I usually include the nomination in my clients' Wills.

For the number of guardians, in the event that neither parent survives, I usually recommend three alternates, which can be individuals or couples.  I recommend that my clients speak with the chosen nominated guardians to have a discussion about this role, and to obtain permission to include them in the list.  Sometimes clients only have one or two alternates; some clients have five or more.  While it may be extremely unlikely that so many alternate nominees are necessary, it provides peace of mind to the clients that they have done everything they could to ensure that in their children will be in good hands even if they are not there to take care of them themselves.


4.  "Should I ever change the nominated guardians?"

This is always a possibility.  I recommend that clients review their estate plans at least every 3-4 years, or sooner if there have been significant changes in the tax laws, the value of their assets, or a major life event, such as a marriage of birth of a child or grandchild.  The child who may be in need of a guardian is constantly growing and changing, and similarly the lives, parenting skills, and availability of the nominated guardians will also constantly change.

There are many factors to consider in choosing guardians, explored in more detail in Choosing Guardians for Minor Children Part 2, and these should be considered and reconsidered at each developmental stage of the child, or more frequently if the circumstances of the child and/or nominated guardians so warrant.

Why should I have a Will?

"Why should I have a Will?"

I am frequently asked this question. While no one is required to have a Will, there are many reasons it is advisable to have one in place.

But first, let's back up. What exactly does a Will do? The main purpose of a Will is to direct the ownership of your certain property after death. It can also be used to nominate guardians for your minor or incapacitated children, and describe your wishes for the disposition of your remains. Without a Will, your property would still pass to your heirs at law, your child would still have a guardian, and someone would still decide what should happen with your remains. However, you would have no enforceable input whatsoever into these important decisions.

A Will directs the disposition of probate property, or property passing inside of your probate estate. Over the last couple decades or so, "probate" has been condemned as the black sheep of estate planning work. Many people feel compelled to do everything possible to avoid it, and yet the process itself is fairly predictable, and does not have to be the insurmountable obstacle people fear. There is even a simple version for small estates. Some people believe that by not having a Will, they will automatically avoid probate. This is simply not true! If a decedent owns any probate property at the time of death, clearing title to transfer the property will still require Court involvement.

One situation which warrants having a Will is when there are children involved. Nominating legal guardians for minor, legally incapacitated or disabled children is a good way to lay the groundwork for what might happen after your death. As part of creating the Will, clients may need to speak with the family members and friends they wish to nominate as guardians to ensure that the intended guardians are not only able to take on such a task, but would be willing to do so. Sometimes clients are surprised by their conversations, but once armed with the relevant information, are able to make or change their nominations accordingly. Without a Will, children will still end up with guardians, but the Court's choice may not necessarily be the same as your own choice, as you failed to make your wishes known to the Court through a Will.

Nominating guardians is not the only benefit to creating a Will when children are involved. Since minors cannot own property, it is often held in trust for their benefit until they reach a certain age. Without a Will, this age is 18. I have never had clients who wanted their children to receive an entire inheritance on their eighteenth birthday! At 18, their children have had their driver's licenses for less than two years, and are cramming for 12th grade finals while trying to get a summer job before trekking off to college. Generally, my clients have felt that this is not the point when their children should suddenly become responsible for managing hundreds of thousands, or even millions of dollars. A Will can contain trust provisions which will direct the management and investment of the estate funds well beyond the beneficiaries' 18th birthday. This will ensure that the children are provided for, but are not burdened by the responsibility of owning and managing the assets at such a young age.

Another situation where I frequently advise clients to create Wills is when they own real estate. The type of title they hold to the real estate will determine how the property will pass upon their deaths, and whether or not it would be included as part of their probate estate. If my clients are married, the issue is usually not what would happen to the property if one of them dies, since the survivor would typically assume full ownership, but rather the question lies in the disposition of the property upon both of their deaths.

For personal property, I find clients generally tend to bequeath their belongings along much more personal sentiments than bank accounts or real estate. Clients often ask if it is sufficient to stick pieces of paper on their belongings with the names of the intended recipients. The answer is no, this is not a legally sufficient manner to transfer property. Notes may fall off or fade in time, and may be removed or replaced by others. If there are precious items you wish particular individuals to receive after your death, a Will is the only means to make such bequests legally enforceable.

Clients also usually use Wills to express their wishes for the disposition of their remains. Sometimes they also include language regarding their desires for any funeral or memorial service. Laying out specific wishes in a Will removes the burden of choosing the type of service from the survivors, who may feel overwhelmed at the time of your death.

Wills can also be used to maximize estate tax advantages. Discussions about estate taxes are generally accompanied by discussions about the lifetime gift tax exclusion and generation-skipping tax, and the ways lifetime and charitable giving might play into enhancing the overall estate plan. In recent years, I have found that while clients still care about avoiding or delaying taxes when possible, they are usually more interested in making sure particular relatives and family heirlooms are taken care of in specific ways. This trend can probably be attributed at least in part to the increased federal estate tax exclusion and portability of the Unified Credit, which for moderately-sized estates removed the emphasis on tax avoidance. In Massachusetts, the estate tax filing threshhold remains at $1 million per person, so there is definitely still some motivation for tax planning.

Estate planning also becomes important in non-traditional, same-sex, or blended families, where one spouse may have children from a prior relationship that will be included in the parent's estate plan but not the step-parent's estate plan. This typically occurs when the step-children are not legally adopted by the step-parent. Unmarried couples need to consider in their estate plans that they cannot utilize the 100% federal spousal exclusion in transferring property to each other, and same-sex couples, even when married, are not currently able to enjoy the same federal tax benefits as heterosexual couples, and need to plan accordingly. Creative estate planning options should be considered in these situations.

Apart from solidifying the choices already discussed in this article, I think the main benefit to having a Will is the peace of mind it creates in knowing that these hard decisions are already made in a thoughtful and thorough manner, and that surviving family and friends will not be burdened by having to make these decisions themselves. The Will should answer any questions the survivors may have about your estate, your children's guardians, management of trust assets, and disposition of remains, which will eliminate or minimize the confusion or disputes which often arise without a Will.

What is a “Self-Proving Affidavit” and why should I have one?

A Self-Proving Affidavit is a sworn statement attached to a Will that makes the Will a “Self-Proved Will,” where the execution of the Will is proven.

In order for the execution of a Will to be valid in Massachusetts, it must be signed by the testator in the presence of, or acknowledged by the testator in the presence of two disinterested witnesses, and then signed by those witnesses. (MUPC S. 2-502)

A Self-Proving Affidavit is a document, usually one page or less, which is simply a statement signed by the testator and witnesses affirming that the testator and witnesses in fact signed the Will in each other’s presence, and that to the best knowledge of the witnesses, the testator is at least 18 years old, of sound mind, and signing the document voluntarily without any undue influence. While the Will itself does not need to be signed before a Notary Public, it is always a good practice to do so. The Self-Proving Affidavit, however, does need to be executed before a Notary Public in order to be considered valid. (MUPC S. 2-504)

A Self-Proving Affidavit or a Self-Proved Will can prevent the Executor from spending time and money to locate the witnesses. Since witnesses can move, die, become incompetent, or remain unfound, it makes sense to have the Affidavit signed at the same the Will is executed.

In one estate I probated, the Will had a Self-Proving Affidavit attached to it, but no one had signed it. (The testator had obtained the Will online and did not seek the advice of an estate planning attorney prior to executing it.) Fortunately, the witnesses were still alive and competent, and had not moved in the years since they witnessed the Will. The Court required that one of them physically appear at Court and sign a sworn statement before a Court officer. This statement had essentially the same language as the original unsigned Self-Proving Affidavit that had accompanied the Will.

While the matter of proving the Will in this particular case was resolved, the witness had to take a half-day off from work to attend Court, wait in long lines, and pay for parking. The additional time and expense involved could have all been easily avoided if the Self-Proving Affidavit had just been signed at the same time as the Will. The Self-Proving Affidavit is a good example of Benjamin Franklin’s saying that an ounce of prevention is worth a pound of cure.

The Issues with Do-It-Yourself Wills

Clients have come to me bearing copies of their Last Will and Testament documents, which they created through do-it-yourself software kits or on-line estate planning services. They offer these Wills to me for a quick review, believing them to be adequate representations of their wishes, and merely wanting confirmation of these beliefs.

In an age and economy where “do-it-yourself” projects are not only encouraged but often a badge of honor, more people are attempting to save time and money by creating and executing their own Wills. The results, however, are frequently not as laudable as the clients’ intentions. I have yet to review a do-it-yourself Will that has fully and completely reflected a client's wishes, and have even reviewed some with fundamental flaws and contradictions. (Add to that a do-it-yourself Trust and the potential for mistakes and inaccuracies may rise exponentially.)

Of course it is possible that some do-it-yourself estate planning programs will produce documents with the desired results, particularly if the users’ life situations conform exactly with the line of questioning produced by the software or online programs. And if and when the do-it-yourself documents “get it right,” perhaps there will be savings of a few hundred dollars and some hours of time.

The problem is that if the Wills are incomplete, inaccurate, imprecise in any manner, the issues will not be discovered until the Wills are offered to probate, at which time the authors, then deceased, have no ability to clarify or correct the documents. If the Wills were also not executed properly, the Court may reject them from the probate process, or if the problem is with the language of the documents, there may be other issues, such as unnecessary taxes due, heirs omitted by accident, or any number of other problems that can result in (at best) survivors’ confusion and hurt feelings or (at worst) full-fledged litigation. These are usually not the outcomes the decedents were trying to produce.

Wills are documents where it pays to get it right. For many clients, just knowing that their wishes are clearly and accurately portrayed in their Wills offers peace of mind. An initial savings of dollars and time may not be worth the hassle of then having to get the do-it-yourself Wills reviewed and possibly rewritten by an estate planning attorney.

What is Collaborative Law or Collaborative Practice, and How is it Different from Traditional Mediation?

Collaborative Law, or Collaborative Practice, is a method of alternate dispute resolution using a multi-disciplinary team approach to resolve a legal issue. The Collaborative Practice model can be applied to any area of civil law, but this discussion will focus on its application to divorce.

The Collaborative Practice Team model employed in my practice comprises of two attorneys, one for each party, a neutral Facilitator, also called a Coach, and where warranted, also a Financial Neutral. The overall goal of the Team is to help the parties negotiate their own Agreement while considering both parties’ goals for the process and outcome. Although there are aspects of Collaborative Practice similar to the traditional mediation process, there are significant differences in the methodology, goals, and Team approach which often make Collaborative Practice an attractive alternative to both traditional mediation and litigation.

While some individuals with a traditional mediation practice consider themselves adept at practicing in a “collaborative fashion,” the Collaborative Practice Team typically works best when all of the Team members have been specifically trained in Collaborative Practice. There is a drastic difference between the dynamics and focus of a single-mediator model and the Collaborative Practice Team approach, and parties tend to derive the most benefit from the Collaborative model when the Team has been specifically educated in Collaborative Practice.

A closer look at each Team member’s role will highlight the differences between Collaborative Practice and traditional mediation. In a traditional mediation process, the parties meet with a mediator, who is likely an attorney or a mental health professional. The mediator helps the parties negotiate the divorce provisions from their respective positions and goals. If an agreement is reached, the mediator usually advises both parties to then take a copy of the drafted agreement to their own respective legal counsel for review prior to filing.

With Collaborative Practice, the parties have attorneys on the Team from the outset of the process. The attorneys provide legal information and advice to their respective clients, but do not negotiate on behalf of their clients as in traditional litigation. Instead, the goal of the Team is to help both parties reach their own goals in a respectful and open manner.

The Facilitator, usually a mental health professional, is a neutral Team member whose purpose is to help the parties maintain their best communication skills, run the meetings, keep the agenda on track and the goals in focus. The Facilitator may meet with both parties individually and/or together prior to the first meeting to get a sense of the potential issues that may arise during discussions in order to better facilitate the process, and may meet with one or both parties "off line," or outside of the group meetings, when necessary.

The Financial Neutral is generally a CPA, or a Certified Divorce Financial Planner, and is added to the Team when there are questions about the allocation of various financial assets, tax implications for the parties, and other financial issues. The parties share one Financial Neutral, whereas in traditional mediation or litigation the parties might obtain their own financial advisors. The Financial Neutral would only attend the meetings when there are specific financial issues being reviewed that would require or benefit from the Financial Neutral's presence; most of the Financial Neutral’s work would be done outside of the meetings based on the specific needs and goals of the parties.

In Collaborative Practice, the Team’s commitment to working together towards the parties’ goals is so vitally important that if the process breaks down, the Team disbands from the case entirely. This means that if the parties wish to litigate, they must obtain new counsel, cannot seek therapeutic treatment from the Facilitator, and cannot use the Financial Neutral as their expert witness.

Sometimes prospective clients ask about the cost of engaging in Collaborative Practice versus traditional mediation based on the number of professionals involved. Every mediation or Collaborative Practice case differs on an individual basis based on a host of factors. There may be more professionals involved in Collaborative Practice at the outset (2 Collaborative Attorneys, 1 Facilitator, 1 Financial Neutral), but at times in mediation there may be more professionals involved overall (1 Mediator, 2 Attorneys, 2 Accountants). When other professionals are needed, such as a business valuator or real estate appraiser, in Collaborative Law the parties often agree on hiring only one professional, whereas in mediation the parties may feel more comfortable each hiring their own. Collaborative Practice can also be more expedient with fewer overall meetings, due to the structured agenda and Team cooperation.

Collaborative Practice provides another option for dispute resolution. It may not be the best fit for every client, but it is worth exploring because it offers a different type of support to divorcing couples who not only want to complete the divorce process, but want to do it in a respectful manner driven by both parties’ goals. For more information, consult the Massachusetts Collaborative Law Council at www.massclc.org.

What is the role of a Guardian Ad Litem?

Literally, a Guardian Ad Litem is a "guardian for the suit." The specific role of a Guardian Ad Litem in a case depends on the nature of the Court appointment. In the Massachusetts Probate and Family Court, Guardians Ad Litem are frequently appointed to investigate or evaluate a particular issue and report back to the Court, or represent an individual who has an interest in the case, sometimes referred to as a Guardian Ad Litem/Next Friend

A Guardian Ad Litem appointed in the role of Investigator is an attorney who may be appointed in family law or probate matters.  Family law cases typically use Guardians Ad Litem to investigate and report on issues of child custody, parenting plans, parental fitness in guardianship matters, removal issues (where one parent wants to relocate to another state with a minor child), or any other issue the Court deems appropriate to have investigated by a Guardian Ad Litem. Sometimes in addition to reporting on the investigated issues, the Court also orders the Guardian Ad Litem to provide recommendations on the particular issue.

In probate matters, Guardians Ad Litem appointed as Investigators are usually involved in the review of estate, trust, or guardianship accounts which have been submitted for Court allowance. In these types of cases, the Guardian Ad Litem checks for any irregularities in the accounts, investments, and distributions, and generally ensures that the funds are being used for the correct purposes.

A Guardian Ad Litem appointed in the role of Evaluator is usually a mental health professional appointed in a family law case to evaluate and/or conduct psychological testing for a particular issue the Court deems salient to the case at hand. Some types of issues that may warrant the appointment of an Evaluator include alcohol and/or substance abuse, sexual abuse, cognitive disorders, mental health issues, anger management, or suicidality.

A Guardian Ad Litem/Next Friend is an attorney who may be appointed in both family law and probate matters. In family law cases, the appointment is usually made for individuals who are minors, incapacitated, or otherwise unable to represent themselves. This type of appointment is more akin to traditional legal representation, except where the Court wants substituted judgment, where the Guardian Ad Litem/Next Friend “stands in” for the appointee, to voice the position the individual would have, if they were not a minor or incapacitated in some fashion.

In probate matters, a Guardian Ad Litem/Next Friend is often appointed to represent the interests of unborn or unascertained individuals, or a class of individuals, if there is a will or trust with minor or potentially unascertained beneficiaries who would have an interest in the outcome of the case.

Basically, a Guardian Ad Litem Investigator or Evaluator is appointed to gather information for the Court on relevant issues that the Court deems pertinent to deciding the legal matter. The Guardian Ad Litem/Next Friend generally represents or stands in for an individual the Court feels has legal interests that need to be represented or protected. In all cases where a Guardian Ad Litem is appointed, the specific appointment is tailored to the individual circumstances of the case, with the idea that the Court can make better, more informed decisions with the information or assistance provided by the Guardian Ad Litem.

Divorce: Mediation or Litigation?

Many people anticipating an uncontested divorce ask me which divorce process is faster, easier, and less expensive: mediation or litigation? Most people believe mediation is the automatic winner in all of these categories. My short answer is: "It depends."

I am not trying to be evasive or nonresponsive. Like any process that involves multiple parties, issues, schedules, and the Court system, everyone can control just their own participation, and the legal machine moves only as fast as its slowest part. I have mediated divorces that have taken nearly 6 months just to reach preliminary agreement, and filed regular complaints for divorce that were finalized in as little as 3 weeks from the date of filing.

Mediation generally has the potential to be a faster process than litigation. Most mediation clients come to me because they would like to avoid certain aspects of litigation, namely hefty attorney fees, Guardian ad Litem expenses, and the possibility of lengthy Court involvement. In mediation, clients are able to take more control over the process, and perhaps most importantly, control over the outcome. The mutual desire to reach a reasonable result in an efficient manner may help drive the mediation process forward to expedient conclusion.

With a mediation, the speed with which the divorce issues are resolved and the documents are completed depends on the clients' mutual availability to meet with me (I only meet with both clients together) and the time they take to gather the information needed to complete the forms. My clients have the option of completing the forms themselves, and I am available to review them, or if they prefer, since I am an attorney mediator, they can give me the information and I will prepare the forms for them. Once the documents are ready for filing, my involvement ends and it is up to the Clients to file their paperwork with the Court and proceed from there. After filing, the wait for a hearing date depends on the Court schedule, but clients should expect to wait approximately 3 months.

It takes two parties to mediate. If either spouse does not want to participate in the mediation process, and if it is not possible for the parties to discuss or negotiate issues together, the only other alternative to obtain a divorce in Massachusetts is to litigate. There are other reasons why mediation might not be the best option for a divorcing couple, such as if there is a history of domestic violence, psychological intimidation or abuse, or if one party is incapacitated to the extent that he or she is unable to comprehend the legal issues and the implications of the mediation or divorce. Or, the parties may simply not both be emotionally ready to discuss and negotiate the issues that need to be addressed. It may be easier (and hence faster) to share information with an attorney, and not have to communicate directly with the other party.

Litigated divorces do not have to be drawn-out nightmares. Sometimes parties just feel more secure about proceeding with a divorce if they have legal counsel to guide them through the process. For many people, their divorce is the first time they have interaction with the Court system, and the process itself might seem scary, intimidating, or overwhelming. Having an attorney who can explain legal rights and court procedures, help complete the paperwork and negotiate the agreement, and accompany a party to court hearings might be all a party needs to feel secure in proceeding with the divorce. The parties can still negotiate the agreement and finalize the divorce without acrimony, and the whole process might not take longer than if it had been mediated.

Since mediators and attorneys are generally paid on an hourly basis, the amount of overall expense will likely depend on the number of professionals involved, and the time it takes for the parties to reach a resolution, whether by agreement or Court order.

So is mediation or litigation faster? The length of time to completion depends on the involvement of the parties and their ability to come to terms. As to which is easier, the route one party feels is easier may not be right for the other spouse. If one party does not or cannot mediate, litigation may be the only viable option. In certain circumstances, litigation might be easier for a party than attempting to mediate. And regarding cost, if parties can discuss the issues between themselves and complete some of the paperwork, then fewer professionals need to be involved for less time, and as a result costs may be minimized. While there is no hard and fast certainty as to whether the mediation or litigation route might be faster, easier, or cheaper for an uncontested divorce, the various factors discussed here should be weighed on a case by case basis, because ultimately for each couple, "it depends."

Can an individual under a guardianship marry?

Can an individual under a guardianship marry? A prior column focused on some of the different life situations that translate into different definitions of legal intent in the application of certain actions. The understanding is that legal intent is defined differently in different situations and in different states. The question raised in this column regards a situation when a person, usually referred to in law as a “ward,” who has a legal guardian, wants to get married or does get married.

Guardianships are established for different reasons and the individuals under guardianship or wards, have varied cognitive abilities. There is no blanket rule for all wards that allows or prohibits marriage. For each ward, the answer to this question depends on the reason for the guardianship, the extent of the guardianship and the particular individual’s mental capacity. For purposes of this discussion, let’s assume that the guardianships are of both the person and the property of the ward.

If the ward is subject to the guardianship merely because he or she is a minor, then the minor can petition the court for leave to marry. If the court allows the petition, the minor Ward can then legally marry despite being subject to the guardianship. This court procedure would apply the same way to any other minor wishing to marry who is not subject to a guardianship.

If the court grants the minor ward’s petition, then once the ward marries, the guardian would no longer have guardianship of the ward’s person, (i.e. custody of the ward or oversight of the ward’s education). However, the guardian would still have guardianship over the minor ward’s property, regardless of the marriage. It is possible that the ward or the ward’s spouse could subsequently petition to have the guardianship terminated or ask the court to name the newly acquired spouse as the ward’s guardian until the ward reaches the age of majority, but this would not happen automatically as an operation of law merely because the marriage occurred.

If the minor ward had also petitioned the court for legal emancipation, then the guardianship could have been terminated altogether without having to wait until the age of majority and the emancipated minor might have been eligible to marry without leave of court.

If a guardianship was established due to the mental incapacity of the ward, then the question of whether the ward can enter into a marriage hinges on balancing of the ward’s fundamental right to choose whether or not to marry, and the ward’s mental capacity and ability to enter into a marriage contract.

Because each ward’s mental abilities differ, each individual ward will have a different capacity to understand, contemplate and choose to marry. If the guardian believes the ward lacks the mental capacity to enter into a marriage, the guardian may contest the marriage from taking place. In the event the marriage has already occurred without the guardian’s knowledge, the guardian may petition the court to have it invalidated or nullified, sometimes known as “annulling” the marriage. It would then be up to the court to assess the ward’s mental capacity to enter into a marriage contract.

If the court determines that the ward does have the requisite mental capacity and the marriage is valid, then the court could decide if the guardianship would be terminated in part or in full.

It appears, both in law and in practice, that the threshhold for demonstrating the requisite mental capacity to marry is not unconquerable. At the time the marriage takes place, the intended spouses need only show intent to marry each other and an understanding of the consequences of the marriage, (i.e. the rights, responsibilities, and obligations of being married). Any lack of mental capacity a ward might experience prior or subsequent to the time the marriage occurred would not by itself be sufficient cause to invalidate the marriage.

If the guardianship only covers the property of the ward and the ward marries, the guardianship would likely remain in place until subsequent order of the court, regardless of marriage. It is unlikely a guardian of only the property of a ward would have standing to contest the ward’s marriage.

Possible concerns could be that the spouse married the ward in order to get access to or control of the ward’s assets. This question assumes that the guardian is working in the ward’s best interests and that the spouse is not doing so. In these matters, both the guardian and the spouse will claim to be proceeding in the best interests of the ward. In the event that the guardian and the ward’s spouse dispute the ward’s mental capacity for the marriage, the matter can be presented before a court of competent jurisdiction for judgment. Absent fraud or duress, however, if the ward possesses the mental capacity to enter into a marriage contract, marrying would remain the right and choice of the ward.

All of the above assumes that there is not a prenuptial agreement, for which both parties have the mental capacity to contract. This agreement could privately resolve the issues.

As in all such matters, it is important that all parties seek the advice of an attorney as the issue may be complex and the answers may be different according to the situation and/or state.

By Edward M. Stern, J.D., and Beth L. Aarons, J.D., M.S.W., Reprinted by permission of the New England Psychologist, April 2009.

Estate of Confusion: What is in the Marital Estate and how is it Divided?

First, what is the marital estate? The marital estate is the collection of all property, assets, and liabilities which are subject to division during a divorce. In Massachusetts, the marital estate includes any and all property acquired by the parties, regardless of how or when it was acquired or whose name it is in.

Many people believe that the only property subject to division during the divorce is that which was earned, saved, or bought during the marriage or in both parties' names. Some common assumptions of property excluded from the marital estate are: the house one party purchased before the marriage, the interest in a grandparents' trust fund, the inheritance from a parent's estate, lottery winnings, monies transferred to irrevocable trusts---the list goes on and on.

Unless there is a prenuptial agreement specifically defining the divisible assets in the event of divorce, the short answer as to whether property is included in the marital estate, is "yes." The house purchased before marriage in only one person's name, the Bentley inherited from late Uncle Jack, and the $50,000 won in the lottery after years of legal separation are all included in the marital estate. This means that all of these assets are subject to division.

Assets with an uncertain value, such as an expectancy of an inheritance, are also included in the marital estate. However, the nature of wills is that they can be changed at any time prior to the Testator's death, and so until the estate is probated, being named as a beneficiary in someone else's will is just an expectancy. This means that while the expectancy may be considered as part of the marital estate, it is not necessarily counted dollar for dollar as an IRA or savings account would be, until an actual distribution from the decedent's estate is calculated and/or distributed.

Assets acquired post-separation are also included in the marital estate, such as with the example with the party who wins the lottery after years of separation. Until the Judgment of Divorce is issued, all income earned and assets acquired are subject to inclusion in the marital estate.

Gifting assets to third parties does not automatically exclude the assets from the marital estate. Sometimes if animosity enters into the the heat of analyzing the marital assets, one party might feel gifting assets to a third party will diminish the marital estate, and therefore also diminish the other party's share. The more likely outcome with such an attempt, however, is that the Court will attribute the gifted amount to the gifter's asset column, which will result in the gifter receiving a smaller portion of the marital estate. If the gifter then retrieves the gifted amounts, this is proof that the transfer was never really a gift.

What is included in the marital estate is different from the question of how the marital estate is divided, and how the assets are considered during division. In Massachusetts, the marital estate is subject to "equitable division." The Probate and Family Court is a court of equity. There is no hard and fast rule or formula that divides assets by a certain percentage, as you would find in a community property state.

Instead, the Court considers a host of factors regarding the divorcing parties, including among other things, their educational, employment, and health status, their financial and non-financial contributions to the marriage, their respective contributions to the preservation and improvements to the assets, and the overall marital estate. After examining the totality of the factors, the Court makes a determination as to the equitable division of assets. As a rule of thumb, the shorter the marriage, the closer the parties may be put back in their respective pre-marriage positions; the longer the marriage, the closer the division of assets may be to a 50-50 split, but as with any rule of thumb, there are always exceptions.

Additionally, a division of assets may not entail dividing each asset. The party who purchased the house prior to the marriage may end up keeping sole title and interest in that property. The fact that assets are in the marital estate just means they are subject to overall division, and not that each party will necessarily get a slice of that particular house. If it happens that the house is the only asset, the Court may have no choice but to divide the interest in the asset to effect an equitable division. Each case presents different assets, circumstances, and legal factors, and so what is equitable in one divorce may not be so in another. Parties can also negotiate their own division of assets, and often do so in the face of uncertainty about what the Court might order in final judgment.

Living Wills Vary Among States

For years, there have been computer software do-it-yourself legal kits for everything from incorporating businesses to buying and selling real estate. In the wake of the recent Terry Schiavo matter, where Schiavo's husband and parents litigated extensively over which of them had the right to determine Schiavo's medical treatment, numerous do-it-yourself Living Will kits have suddenly sprung on the market. These offers are available at extremely low prices, promising to help purchasers design the ironclad documents that will dictate their medical treatment in the event they are unable to voice their own desires.

It is certainly commendable for individuals to actively take control of their medical futures and alleviate the potential burden on family and loved ones of having to make difficult decisions in the face of physical incapacitation. However, purchasers should be aware that there is currently no nationally standard Living Will document accepted in all states.

Each state promulgates its own legislation regarding the type of document that is legally acceptable to appoint a medical agent and may offer varying degrees of authority to the medical agent. In fact, some states do not authorize the documents referred to as "Living Wills," such as Massachusetts, which instead provides for a similar document called a Health Care Proxy. One reason for the variation among the states may be because the authority to appoint medical agents derives from different areas of the law depending on the state. For example, in just the northeastern states, residents may appoint medical agents based on legislative authority from the following areas of state law: Conn.: Conn. Code of Public Health and Well-Being, Chapter 368w, section 19a-575; Maine: Maine Probate Code, Title 18-A (Protection of Disabled Persons); Mass.: Massachusetts General Laws, Chapter 201D (Health Care Proxies); N.H.: N.H. Public Health Code, Chapter 137-H; N.Y.: N.Y. Public Health Law, Article 29-B (Orders Not to Resuscitate); R.I.: R.I. Health and Safety Code, Title 23, Chapter 4.11 (Rhode Island Rights of the Terminally Ill Act); Vt.: Vt. Health Code, Title 18.

One potential difficulty with each state having its own requirements for appointing medical agents is that the medical agency, while legitimate in the state of origin, may not be valid in another state. This scenario may play out when patients move to other states without updating their documents, or when they are transferred between care facilities over state lines. Formerly, residents of one state could generally rely on other states for legal reciprocity; that is, if documents were legally and validly executed in the residents’ home state, they could rely upon other states to recognize and enforce these documents in any other state. As we have seen recently with other areas of the law, such as same-sex marriage, this reliance no longer exists, and those who execute Living Wills or their legal equivalent should be aware of this potential problem.

Additionally, many hospitals or health care facilities prepare their own documents for patients to use in appointing medical agents. Patients should attempt to independently ascertain whether or not these forms are valid statewide, or only of use in the specific hospital or health care facility. If the documents are only valid at the particular location, the patients may lose their medical agents if they are moved to a different location, even within the same state.

With recent developments in national health care, in addition to complying with statewide laws, treating physicians now also have to ascertain whether or not the release of certain medical record information to medical agents complies with HIPAA regulations. Patients may want to inquire with their physicians or health care providers about what type of release they would require included with their appointment of a medical agent so that the medical agent would have access to all necessary information from the medical files.

These are just some of the issues to consider when examining the promises of security offered by do-it-yourself Living Will kits. There may not be any “ironclad” document appropriate for all purchasers in all situations. Those who wish to execute documents appointing medical agents should research and confirm the validity of the instruments they sign, and not assume that validly executed Living Wills or Health Care Proxies from a home state will automatically be recognized by other jurisdictions.

by Edward M. Stern, J.D. and Beth L. Aarons, J.D., M.S.W. Reprinted with permission of The New England Psychologist