Annual Family Law Conference looks at restraining orders, divorce assets and college planning issues

Issue August 2005 By Bill Archambeault

A case pending before the Supreme Judicial Court could help resolve the often inconsistent approval of restraining order renewals, an issue that family law practitioners say is crucial.

Chapter 209A restraining orders is just one of the hot topics in family law, according to Pauline Quirion, an attorney with Greater Boston Legal Services and chair of the Massachusetts Bar Association Family Law Section.

Quirion applied for direct review of a case in which a woman was denied a restraining order renewal because the district court judge found that she wasn’t under threat of imminent bodily harm — even though the woman had been injured in the past and had been recently harassed by the man.

“I don’t think the appeals court case law is consistent with the statute,” she said. “The appeals court decisions in recent years have focused on abuse being defined in the present tense. I think in the district courts, they’ve been reading the appeals court decisions very narrowly. I can only hope (the SJC) gives us some clarification. It’s difficult for practitioners and difficult for the judges, too.”

Chapter 209A will be one of the featured subjects at the Massachusetts Bar Association’s 15th Annual Family Law Conference, being held Sept. 16 and 17 at the Cranwell Resort, Spa & Golf Club in Lenox.

Quirion, the program chair of the event, expects to have a decision from the SJC before the conference starts and be able to use it as a timely part of the discussion.

“It’s an area that people are interested in, and there’s controversy,” she said.

Another area of concern is the recent imposition of time standards on family and probate courts, particularly when it comes to divorce settlements that sometimes require a less rigid schedule.

“Attorneys don’t like it,” Quirion said. “Time standards are good for tort cases, but in divorce cases, sometimes you need time to cool off. You’re pushing them through the system faster than they’re ready for. I think it makes a lot of us uneasy.”

Denise Squillante, who practices family law at Denise Squillante PC, Attorney at Law, in Fall River, agrees.

“In the last two weeks, I’ve filed three motions to take the case management off the list because the parties are attempting to reconcile,” she said. “That 90-day period seems to be choking the litigants in the case. There’s an emotional element to divorce that time standards impact.”

Squillante, who is moderating the conference, said it would be the best opportunity lawyers will have to convey their concerns about time standards to the dozen-or-so judges participating in panels.

“I expect that to be a lively discussion with some criticism of (time standards),” she said. “This is the opportunity for practitioners to speak up.”

One of the most difficult areas related to divorce cases stems from the division of gifted, inherited and trust assets, Squillante said. As more and more parents of baby boomers die and pass on their assets, the issue has become more important.

“It is a common dilemma right now,” she said. “We struggle with it and the bench struggles with it to do something that’s fair. I think we struggle with it because there are so many more cases involving trusts and gifted assets than when I started 20 years ago. That generation is passing wealth onto people getting divorced.”

The subject should be of interest to most who attend the conference, she said, noting that lawyers need to be familiar with divorce law in order to help clients in the midst of estate planning understand what issues might come up if their children get divorced.

“It’s a complex area of law, but (conference participants) are going to be given the benefit of working through hypotheticals, reviewing case law and getting judicial insight,” Squillante said. “Practicing lawyers always want to know what judges think, and that’s what they’ll get.”

Financial planning for college is another featured seminar that will review and discuss the problems that arise when divorced or unmarried parents try to resolve their children’s education in the courts.

The biggest problem stems from trying to plan for a child’s education years in advance.

“That’s a real problem for lawyers in general,” Quirion said. “They can’t order someone to pay for college when the child is a baby.”

On the other hand, if the court doesn’t order a parent to start planning and paying for college well in advance, they’re going to have trouble coming up with the money by the time it’s needed.

“I think people are looking for information to help them figure things out,” she said. “The preferred approach is to reach an agreement and plan early on. It’s an area where we all need some education on the issues. For lawyers to try and do it on their own without a financial planner is probably ill-advised.”

Quirion and Squillante said the conference, with a mixture of substantive, detailed seminars and the chance for lawyers and judges to relax socially in the Berkshires, should be useful for participants trying to get a handle on a complicated area.

“Family law is the most dynamic area of the law,” Squillante said. “It’s the body of law that affects the foundation of our society, the family. It is constantly changing.”