Measure Twice Cut Once: Why You Actually Might Need a Divorce Lawyer

Part One in a series on divorce and family law by Smith Lee Nebenzahl lawyer Beth M. Nussbaum

Perhaps you and your spouse want a do-it-yourself divorce without wasting your soon to be divided assets on lawyers.  You agree to share everything equally, from money and assets to responsibility for your children's expenses, and you may have heard horror stories from friends and family about mounting legal bills and lawyers unnecessarily complicating a divorce.  Those stories are important cautionary tales, and should cause you to be careful in your choice of a divorce lawyer.  Unfortunately, however, the reality is that what seems simple in concept can become immensely complex in reality, particularly as years go by, when both spouses move on with their lives and circumstances change. One example of where the right divorce lawyer can help save you greater expense and headaches in the long run is the separation agreement.

Let's say you and your spouse actually really agree about equal division of property and responsibility for children.  The court will require you then to submit a separation agreement, sometimes called a divorce agreement, which typically includes arrangements for the division of real and personal property and assets, alimony, and various other items such as health and life insurance, retirement funds, trusts, debts, liabilities, taxes, living situation, inheritance, and/or recognizes and incorporates a premarital agreement, otherwise known as a prenuptial agreement, if applicable. Where children are involved, a separation agreement also addresses child custody, parenting plan, child support, and education, among other issues.  That list alone should signal that even in an amicable, uncontested divorce, there are pitfalls to be wary of, and a poorly drafted separation agreement can lead to expensive legal disputes in the future. 

Consider the following scenarios:

1. A separation agreement generally states its “intent” that after divorce, the parties will equally share costs for the children’s and parents’ medical and dental insurance. In its numbered parts, however, the agreement states that the husband will cover the wife and children’s insurance but that if there is an extra cost to insure the wife, that she must pay such cost herself.  Elsewhere the agreement states that the parties are responsible for their own uninsured costs.
2. A separation agreement states that after divorce, the parties will provide the children with health insurance and child support, including for post-secondary education, until the children reach “emancipation,” and the agreement provides for the sharing of college tuition and “incidental costs.”

At the time these agreements were signed, the parties presumably had a shared understanding and agreement about how the agreements were supposed to work, doubtless informed by their understanding of the circumstances at the time they signed them.  Fast forward several years, however, and changed circumstances may make the application of their provisions hotly disputed.

Agreement Number One is problematic in two ways:  first, the separation agreement’s “intent” that the parties equally share costs is in direct conflict with its actual numbered provisions, which specify that the parties shoulder their individual costs.  Second, the agreement does not provide for a change in scenario, such as if the husband changes employment and no longer insures the children.  A better crafted separation agreement would address the probability that the parties’ insurance situation might well change, likely would contain gender neutral language that would anticipate such change, and any statement of intent would be consistent with the agreement’s numbered provisions.
 
Agreement Number Two does not define “emancipation.”   Is it 18, 21, or 23 years old?  If defined by statute, is it the statute effective at the date of the agreement or when a party seeks court intervention with regard to enforcement or modification?  Also, current health insurance rules provide for coverage of children up to the age of 26 by their parents’ policy.  Is there or should there be a different age of “emancipation” for health insurance than for other child support purposes?

Agreement Number Two also fails to place any parameters on what constitutes post-secondary “incidental costs?”  Do such costs include room and board alone?  Books?  Computer?  What about a microwave, television, sports equipment, car, plane tickets, or any of the other items college students may need?  Does one parent have unlimited authority to approve an "incidental cost" and send the other parent a bill for half the cost, even if it is a discretionary expense that the non-deciding parent would not have approved on his or her own dime?

A cursory separation agreement simply cannot account for all of the details or post-divorce changes in situation that can trip up application of the agreement.  As a result parties must often expend substantial, unnecessary legal costs down the road on lawyers trying to correct poorly drafted separation agreements through complaints for contempt or for modification.  Importantly, where the agreements were drafted at a time when the parties believed they agreed on their basic terms, the subsequent disputes often arise when one or the other parent/spouse is in a significantly different set of circumstances and prepared to fight. 

Can you anticipate every possible scenario?  Of course not.  But a good divorce lawyer can help you anticipate potential life changes that could affect the operation of the agreement, guided by the experience of issues that have caused post-divorce disputes for other couples, and help ensure that the agreement you sign anticipates what can be anticipated and provides clear and consistent principles for what cannot. 

Beth M. Nussbaum
http://www.slnlaw.com/Family_Law.html

Through the Google Glass: mx.google error messages and finding the right lawyer

This post is not about the law, per se.  It is more about adventures in the operation of a law business, and intended primarily to offer to whomever is looking the solution to an email problem that has bedeviled us for months.
 
We are a small business, with some degree of technological autonomy- our domain is hosted by a large web-hosting service, but our emails are routed through our own Microsoft Exchange server on site.  A few months ago, we began getting bounce back messages when sending emails to people with gmail addresses.  This was actually a fairly enormous problem, as many of our clients and prospective clients use gmail accounts (compounded by the fact that we frequently remind people not to communicate with us via their employer's email accounts, due to issues surrounding privacy and attorney client privilege that could be the subject of an entirely separate post).  The error message went like this:

"mx.google.com gave this error:

[####:#a##:####:#:#a#:a###:#aa#:a###] Our system has detected that this message does not meet IPv6 sending guidelines regarding PTR records and authentication. Please review https://support.google.com/mail/?p=ipv6_authentication_error for more information. w8si14224913qag.54 - gsmtp

 

Your message wasn't delivered due to a permission or security issue. It may have been rejected by a moderator, the address may only accept e-mail from certain senders, or another restriction may be preventing delivery."

 

Wait, what?  If practically nothing about that message looks like a language you speak, then you can appreciate our dilemma.  I will spare you the step by step description of our flailing about trying to find an answer, but say simply that between our web-hosting service, our ISP, our local IT consultant, and a variety of techy friends and acquaintances, nobody seemed to have the obvious answer to the question.  Here is the answer, because if you hit upon this post you are probably looking for it.

• The basic problem is that Google now requires validation that the domain that is sending an email is real- this has always been the case, but they now require validation both of your regular old IP address, which looks like this: ###.###.###.#, and your IPv6 address, which follows a different protocol (the series of numbers and letters in the brackets that comes in the bounce-back message is in fact the IPv6 address of your mail server--I made ours anonymous above, because nobody reading this really needs to know the IPv6 address of my mail server).  The main thing you need to know is: (i) someone needs to configure your domain to include a DNS record for your IPv6 address; and (ii) your IPv6 address is the gibberish that mx.google just sent back to you. Armed with that basic information, somebody ought to be able to help you.

• If you happen to use a service like Go Daddy and want to fix this yourself, you can log in to your account, navigate your way to the DNS manager, then select your domain and click "edit zone."  In the Go Daddy system, you will see a button that says "add record-"  On the drop-down menu "select record" you will see an option "AAAA(IPv6 Host)."  Select that, then add the numbers and digits from the bounce-back message, and follow the prompts to save. 

So why am I posting this on a law blog?  First, I never was able to find a clear answer to this online, so consider this paying it forward. 

 

Second, I suspect that my relationship with technology is not unlike the relationship of many non-lawyers with the law.  I am not a complete idiot, am as able as anyone to browse the web for information, and generally able to analyze a problem and identify solutions.  But when the problem involves something I know too little about to even know what questions to ask, or who to direct those questions to, and the internet offers information that ranges from too-technical-to-be-useful-to-me to downright incorrect, I am stuck.  And it stinks to be stuck on something so stupid.

 

What broke the dam for me was encountering someone whose professional expertise allowed him to explain to me, in structural terms, what was happening and where and how the problem needed to be solved.  In many ways, that is what we do as lawyers.  Our clients are intelligent people who solve complex problems every day in their own fields, but often do not have the information to even know which legal box or field of expertise a problem belongs in.  The internet is there, but in many areas of law has the same defects as a resource that it did for me- ranging from too-technical-to-be-helpful to downright incorrect, with the right answer out there somewhere but no meaningful guide to finding it.

 

So, if you are reading this and think you have a legal problem but do not know where to start (and did not actually stop reading after the fix to the gmail problem), here is my advice:

• Start your inquiries with a lawyer or law firm that has multiple practice areas.  In every profession, specialists tend to recommend solutions that are within their specialty.  It's just a comfort zone thing, but not always the right answer for you.  If it is not obvious to you what your issue is, it is better to have someone with a broad base help you issue-spot than to go to someone who wants to put your issue into the box that s/he understands best.  

• Always ask why.  Always.  You may not be trained in the law but you are probably a smart and logical person- if someone gives you an explanation of what you can and cannot do, you have a right to understand how they came to that conclusion, whether you end up working with that lawyer or somebody else.  And knowing why will help you make good decisions.

• Don't sweat the small stuff.  If an extra half hour of giving your lawyer facts that will help him or her correctly diagnose the situation costs you an additional hundred dollars or so, imagine the cost of paying that lawyer to follow the wrong path for months.

• And finally: the person who pointed me in the direction of the right answer to my gmail problem did not ask for or require my business as a quid pro quo for that information, though he is certainly high on my list if I ever need any of the services he provides.  The lawyer you want will be similarly willing to do a little triage for you without an immediate commitment.

 Good luck to problem solvers everywhere, and thanks to our clients for their patience while we figured how to keep communicating with them....

     

  

 

The Price of a Job: Employee Noncompetition Agreements in Massachusetts

So you have found a job in your field, perhaps everything you expected and desired, or perhaps something simply acceptable under the circumstances.  You have considered the salary and benefits, the way in which this opportunity fits your short or long term career objectives, the cost of the commute, and a number of other variables capable of some degree of projection and evaluation.

Then you are handed a non compete agreement to sign.  How do you assess that? To be honest, many do not: jobs are not exactly growing on trees, and the prospect of someday leaving this new and exciting job may seem distant. Even if you do undertake to analyze what the non-compete might mean, however, except at the extremes on either end of the spectrum, you have little chance of coming to a reliable conclusion under existing Massachusetts law.

Consider the following scenarios:

·         A high level technical employee with access to critical information about product design, subject to a two year non compete agreement;
·         A hairdresser paid on a commission basis and making no more than $45,000 a year subject to a one year non compete agreement within a certain radius of her employer’s location;
·         A salesperson who has represented the company to customers for many years subject to a four year, nationwide non compete agreement;
·         A telephone salesperson whose job entails cold calling prospective leads subject to a one year non compete agreement;
·         A recent college graduate who worked in a sales capacity for less than a year subject to a one year non compete agreement.

Do these individuals stand on the same footing legally if their employer seeks to enforce the noncompetition agreement and will these agreements be enforced?  The answer under Massachusetts law, currently, is a resounding “maybe.”  

A non compete agreement (also known as a covenant not to compete or a restrictive covenant) signed in connection with employment is enforceable under Massachusetts law only if it is: (i) supported by consideration; (ii) reasonable in scope; and (iii) necessary to protect a legitimate interest of the employer. What that actually means is subject to considerable debate and can lead to different and inconsistent results.

A judge might or might not, for example, decide that the hairdresser cannot be held responsible for the employer’s goodwill if she goes into competition, that a four year restriction for the salesperson is unreasonable, or that the relative inexperience of the recent college graduate and the short duration of her employment would not place her in a position of damaging the employer’s goodwill by competing.   A judge might, or might not, decide that the technical employee carried with him or her valuable trade secret information that should not be allowed to benefit a competitor during the noncompetition period, or that the sales representatives were sufficiently connected with the employer’s goodwill that the restriction on competition is reasonable.

Employment lawyers are a creative lot, therefore a number of additional attacks on the enforceability of noncompetition agreements have evolved over the years under Massachusetts law, including arguments that: (i) material changes in job circumstances void the non compete agreement; (ii) an employer’s failure to pay compensation as agreed is a material breach of the employment agreement and excuses the employee’s performance under the non compete agreement; and (iii) non compete agreements signed after the beginning of the employment relationship are not supported by consideration and are therefore not enforceable. 

If you came to me tomorrow wanting help getting out from under a noncompetition agreement, some or all of the above theories could be available to you.  If, however, you came to me tomorrow and asked for advice about whether you should sign a noncompetition agreement, or whether an agreement you want your employees to sign is enforceable, the above analysis might be the best I could offer you. 

This is cold comfort if you are trying to truly understand the price of the job you are considering, or the extent to which you want to restrict your employees’ activities post-employment, particularly since the lack of clarity in the law virtually guarantees some non-trivial expenditure of legal fees on both sides should the agreement ever come into dispute.

There are two bills pending in the Massachusetts House of Representatives that could help bring better clarity to the law of non compete agreements in Massachusetts.  One, sponsored by  Representative Sheila Harrington, would declare noncompetition agreements unlawful except in connection with certain delineated circumstances, such as the sale of a business or dissolution of a partnership.  See House Bill 1729.  Another, sponsored by Representatives Lori Ehrlich  and William Brownsberger, would create a presumption that non compete agreements lasting six months or less were reasonable, and a presumption that longer non competes were unreasonable.  Under this bill, a court could only enforce a non compete agreement whose duration was found unreasonable if: (i) the employee breached a fiduciary duty to the employer; (ii) the employee has unlawfully taken property of the employer; or (iii) the employee has, at any time, earned an annualized salary of $250,000 or more.  See House Bill 1715. 

Though these are clearly drafted with the employees' interests in mind, there is something to be said for certainty and clarity for both employees and employers.  As employees would benefit from the ability to assess the potential impact of an agreement before signing one, employers would also benefit from having a clearly defined set of rules of the road when drafting their own non competes and making decisions about enforcing those agreements.

A concluding note of non-legal advice: both employers and employees could benefit from appreciating that there are many mutually beneficial things that can come out of a former employment relationship, virtually none of which are accomplished by non compete agreements or legal battles.  The guidelines in the proposed bills, or the much less clearly defined guidelines that can be found in existing caselaw, are perhaps a starting point for parties on both sides of the issue to chart a reasonable course that can avoid unnecessary conflict.