Matthew Brickman and Sydney Mitchell interview esteemed family law trial and appellate attorney Matthew P. Barach, whose prestigious career includes winning two landmark family law cases in the Commonwealth pertaining to the New Alimony Reform Act and child custody - removal of a minor child from the Commonwealth (George v George and Miller v Miller).
Mr. Barach has been ranked as a Top 10 Family Law Attorney in Massachusetts by the American Jurist Institute, and as a Top 100 Lawyer in America by the American Society of Legal Advocates. He is also regularly granted the highest distinction on Avvo.com. His articles have appeared in the Massachusetts Family Law Journal.
If you have a matter, disagreement, or dispute you need professional help with then visit iMediate.com - Email mbrickman@ichatmediation or Call (877) 822-1479
Matthew Brickman is a Florida Supreme Court certified family and appellate mediator who has worked in the 15th and 19th Judicial Circuit Courts since 2009 and 2006 respectively. But what makes him qualified to speak on the subject of conflict resolution is his own personal experience with divorce.
Hi, my name is Sydney Mitchell. Hi, I'm Matthew Brickman, Florida Supreme court mediator. Welcome to the Mediate This! Podcast where we discuss everything mediation and conflict resolution.Sydney Mitchell:
Today. Matthew and I are extremely excited to have a special guest on the show. So we have with us, Matthew Barrick , Matthew was considered by many as the fixer in Massachusetts family law. He has over 20 years of family law experience. His prestigious career includes winning two landmark family law cases in the Commonwealth pertaining to the new alimony reform act and child custody. Matt has been ranked as a top 10 family law attorney in Massachusetts by the American jurists Institute and as a top 100 lawyer in America by the American society of legal advocates. Welcome Matthew. We are so excited to have you with us here on the show. How are you? I'mMatthew Barach:
Doing well. How are you guys doing? I'm doing good.Sydney Mitchell:
I'm doing great. It's great to meet you, Matthew.Matthew Brickman/Matthew Barach:
It's nice to meet you too. Awesome. You're doing good. So Matthew, I'm just going to jump right in. I'm really excited to find out what you did with alimony reform and with chomp custody in Massachusetts, because in Florida we've been unsuccessfully trying to modify and change the laws, but , uh, um, tell me how it was in Massachusetts and then what, what , uh , took place and how it got changed and what it is now. Well, the alimony sort of came out of , um, common law so that there was never a specific statute, which is true in most states where there is no alimony is something that a judge would do and he would base his ability to do or her ability to do it not based on their discretion, based on the marital statute generally. And so a body of case law over the years developed as to how, and when you can do alimony and awarded to a party that seeking it or not awarded. And one of the problems historically was well, okay. If a judge grants a, let's say a wife , alimony, the husband, the big question was always, well, when does it end ? Right. And so what happened over the years is that a person that was retiring, let's say a husband worked for 20 years and paid alimony, maybe the marriage, like 10 years, there was no cutoff date for that alimony, unless that person went back to court. And over the years, because there was no statute, there was no specific law in place that would say that alimony would add upon retirement. People were paying for alimony up until their 60 seventies and it became, became quite an issue. And so it became a real ground swell movement. And in Massachusetts, in the Commonwealth to put in a statutory mechanism, which would stop alimony at the age of retirement. And then there was other issues around it, like the duration, like say you're only married for five years, but what have you ended up paying alimony for 10 ? There was nothing that limited to that. So as part of that, part of the statute that , that came out, the new alimony reformat about now about 6, 7, 8 years ago, they, the statute limited alimony in the term that you could receive alimony based on not only cutting it off at the social security age of retirement, which is generally right now for folks 66 or 67, if you're born after 1960, prior to in 66, they put in durational limits. So a marriage from zero to five years, you could only have alimony for 50% of the durations, five to 10, 60%, et cetera. And in a marriage , uh, over 20 years , uh , it could be for an indefinite length, but so they pegged it to the length of the marriage, which is defined as the date of the marriage to the service of the complaint for divorce. And so that sort of did a way that radically with the inequity of having a pay or pay alimony beyond their age of retirement or beyond a sort of a fair amount of months that's exceeds the marriage. And that was the basis of it. Uh, what they did was they took a percentage of 30 to 35% of the differential in a party's income, which is sort of based on the federal tax code. Unfortunately, that changed because I think one of the , the land, you know, the real change in alimony over the last five years is that when Congress and their infinite wisdom got away, did away with the deduction of alimony to pay or, and that's really changed the whole mechanisms . That's what I thought , everything for a little bit, two years ago, I think about two years ago, it was the last, the last Congress before the current one. And that really changed because for about 50, 60 years , uh, the history of alimony when it was starting to be paying , was it at least it was tax deductible. What we were able to do tax deductible for the payer and taxable, the payer pay and what , what that was good at, what was interesting about that was it enabled us to do tax analysis and figure out the best percentage of alimony to be paid in the interest of the family. Not necessarily interest of , uh , the payer or the payee, but the way a judge would look at what was best for the family. And then you could make, you can make those arguments to a judge. And when they did away with that, it's really changed it because now our statute is not in conformity with the tax code. Uh, so we've got sort of different divisions, some there's different tables you can use. And there's a lot of experts that use it and actually the percentage now, because it's , it's tax-free to the recipient and the payer's not getting a deduction, it ranges the gamut from 20 to 28%, but it changes, it kind of changed the whole amounts . Yeah . Yeah. So, so what, what Florida did in back, and I believe it was like about 2011 or so it was , they finally clearly defined what a short-term mid-term and long-term marriage was. And then they assigned each different type of alimony to those , uh , divisions. And they had created durational alimony and durational alimony in Florida said, well, you can get alimony up to the number of years that you're married, but historically though, the judges were doing 50%. So like you were saying like a 10 year marriage, you get five, a seven year marriage, you get three and a half. So, I mean, that was just typically how it was done. And then for permanent alimony in Florida, they've been trying to get rid of permanent alimony, go and look, it's just durational for mid-term long-term marriage. Um, and they've been trying to get a cutoff date. I , it was about two years ago, I went to the alimony reform conference. It was interesting because exactly, as you were saying, there were so many people that were there that had hit retirement age that are still having to work because they've got the alimony obligation and there was no termination date. Well, I, it's funny. Yeah, I think, and I think that was sort of where a lot of this came from, because that always seemed unfair to have somebody at retirement age still potentially having to pay alimony or , and having to work. And particularly if the marriage was of a short duration, I had a very famous case before the new alimony reform act, where I had a guy that was, I represented the husband that was literally married for six weeks, literally six weeks, but that was it. And , uh, he had , um, had an affair very early on in the marriage, which six weeks, you know, it was basically on a honeymoon, let's call a spade, a spade. So it was, it was the shortest duration. And see , I had argued, this is the part of the act that when I argued to the court, I said, look, how was there , how could a lifestyle be formed ? Because you know, how am I supposed to keep the lifestyle? Right? The lifestyle is what we defined. We say need to, it's kind of a misnomer need for alimony. Someone needing to have, it does not mean they need to pay their bills with it. It's supposed to be, to maintain for a period of time. The lifestyles , the need really is defined in the law as your lifestyle. And my point to the, to the judge and then to the appellate court later on was how could there possibly be a lifestyle that was defined within that six week period? I said, it just doesn't, you don't have that kind of partnership. Doesn't have the link . And this is why it's very brevity. There should be not alimony. Well , I lost the case, you know, because they, they , they looked at it differently at that time. But I think it was a striking example of balancing interests in for , so how long does somebody have to pay alimony? Um, when they get married, is that a lifetime commitment that people are divorce rates are high marriages, you know, run the gamut , uh, are you locking yourself in for a longer duration than the period of the marriage? And I do think that , you know, 50% of the term is generally seems to be reasonable, but there's the jurisprudence. And it was always well, it's up to the discretion of a judge based on the individual circumstances of the case. And that's why my guy ended up paying alimony in that case for a six week marriage for one year. But I guess now it'd be three weeks or not even a month. So is what it is Massachusetts now. So do you have an alimony calculator, like we've got child support calculators, or is that still discretionary to the court or do you guys have to do, like, like you said, do a, do a hand calculation looking at the financial affidavits going okay. It's about this percentage? Um, the , the answer is yes and no. We don't have a specific calculator in the statute. Like the child support guidelines as you know, a calculator. I think every state has some form of have guidelines. You're wanting the numbers and they're presumptive alimony. The way we define it in the statute is need or 30 to 35% of the difference in the party's gross income . And what they have said is that if a judge puts a order in , uh , at 30 to 35%, that's the presumptive order that that generally is what it should be , what it should be because it's consistent statute, but it actually does say need first. So this is an argument that, well, maybe if they were, you know, lived a very less than a highfalutin lifestyle, maybe the needs underneath that 30 to 35%. However, in reality, I don't think I've seen a case where it hasn't been substantiated by the appellate court at 30 to 35% of the difference in the parties and costs . Although now and there hasn't been a case yet on this what's interesting is because we have not changed the statute to reflect the change in the federal tax code. So we, we stayed , the statute still says 30 to 35% and the case law still supports it. However, I think a case will probably come along where somebody new, challenged and award at 26% or 24%. And I have a feeling that the courts will say that that's consistent with the need part of the 30 to 35%. Well then Florida, you know, just as , as you keep saying, you know, I mean, and the statute, everything like, like the first factor before you get to the lifestyle, the age, the duration of the marriage, the, how the, you know, the contribution it's need versus ability to pay, you've got to show the need, then you've got to show the ability to pay. And so in 2016, we got really, really, really close to alimony reform. They actually put, or actually gave us a calculator. And so even in like family law software , um, we actually have a, and you know, it's interesting because it is based off of that percentage. So that percentage that you keep talking about is basically around what the judges have historically just done anyway. So they sort of like reverse, engineered everything, but they actually gave us a calculator. And so it's interesting as a mediator, that in that, you know, having these different discussions, running the child support, then looking at the differential in their , in their net incomes. And then I can go in and put the calculator. And the way that Florida was done was they had a presumptive high end and low end of duration and a presumptive high end and low end of a mound . And what's interesting is you look at that calculation, then you go and you look at the other spreadsheets and the other calculations for the differential and income, trying to get an , a Florida it's usually between about 30 to 45% give or take like, you know, it's that, you know, they, they say alimony cannot , um, leave the payor with less money. Alimony is not to equalize out the income. Uh, alimony is not to create a savings or , you know, any sort of savings whatsoever. It's there to meet your need, which is what she keeps saying. But, you know, look, and so we've , we were , like I said, we actually have a calculator to at least give us an idea. And what's interesting is the calculator is really close to what the judges just keep ruling, but it is discretionary. Uh , it used to be, I used to love the fact that it was very easy before it was, you know, a third to the government, a third , um, to the wife and third to the husband or vice versa. It's just that that mechanism seems to generally still work, but the change in the federal tax, we have a state income tax in Massachusetts, so that it's still actually deductible your alimony on the state level, which our state income tax is 5.5% right now. So there's , there's still a deductability there that sort of needs to be factored in, but losing the federal deduction for the pay or, you know, it's made things a lot more complicated for us because now you fight about the percentages. And, and as you know, in a high income case, you read even a long-term case that the swing can be quite substantial in terms of what you're advocating for and what you, you know, what you , where you end up arriving at it. And now a judge has got the discretion and really needs to hear tax evidence and tax analysis as to why 23% of the difference works. And what's interesting is the folks that have , um, the experts here that have done sort of these cow calculators or tribulations to help you figure it out, the more income you make, the less you pay an alimony , wait, the more income you make, the less you pay the less percentage really , right. Because , you know, the percentage actually goes down because if you're making, you know , $2 million a year and you're paying 15%, well , that's better. So it's, it's, it's, it's interesting because it hasn't really been, been challenged yet, but that's sort of , uh, the tabulation and it has to do, I think with also the way the taxes are. So you you're, you're not taxing effecting. And so the more incumbent someone who receive you take away the tax effect, the more they end up in their pocket, the less the person has to pack, which I thought was interesting, but I I'm hoping , I think what'll happen is I don't know what you think, but I would imagine that either our statute or the statute will come and align eventually with , uh , the tax code or more likely the tax code might, that might change back to being deductible. I think the problem was is that people thought , uh , I guess the issue was that in Congress, they were saying, well, people, you know, skirt the tax because they come up with the best calculation. And that was true. We couldn't look can't family law attorneys can't argue that, but we were trying to help the families so that because in divorce, you've got this shared sacrifice and there's different equities, and you try to come up with the best financial arrangement to not leave the , um, non-working spouse in a lesser position, which really helps everybody because if she's able to, or he's able to continue their, their lifestyle, I think that has a , certainly a tangible economic benefit. And that way, when the, to enable the husband or the wife, wherever the high earner was to be able to get them to pay an hour , there was an alimony award. There was an incentive there that, okay, you might be paying X dollars of your revenue, but you're going to pay less than tax. And so it's the same thing at the end of the day. Most people in the divorce were dividing up assets. We're doing this business transaction so everybody can move on with their lodge. They're slicing up the pie as equitable and equal as possible. And to be able to have the tax analysis, the benefit to be able to have a pay or agree, to pay a certain amount, to be able to show them, okay, well now your taxable income, instead of being 34%, it's going to be 27%. What do you care if you pay this? And that , that made it possible to do deals. And so I think Congress, you know, certainly made a mistake because I think they weren't looking at the purpose of why it was important for us to have that creativity, to help people and help families move on where people's lifestyles wouldn't go down. And I think that has a benefit that goes onto the economists . I think it was, it was a terrible decision, you know, in Congress to do that. And hopefully, hopefully that'll change we're back. One of the things that you had mentioned was how it's the entire thing was not geared towards husband, wife, mom, or dad, but was family as a whole. And how, you know, when, you know, how, how, how that scenario pain being able to deduct, not the duct , you know, all of that helps with the provision of the child. Right. That's all right. And that that's the societal benefit, you know , so a child's not, you know, negatively, you know, every study, right? Says you shield the children from the divorce and they don't have long-term ramification . That's all, that's all the new, psychological testing and studies they've done. But if you keep the kids out of the divorce, the long-term effect is Neal or negligible. The more involved they are in the divorce, the opposite is true. Right? So to enable the child to maintain the same lifestyle , uh, between both households, that's , that's the whole point and the creativity and the ability to be used , the best tax analysis for the family is something that families do all the time regarding the tax code. And that was a very important integral fact and a divorced to try to figure out what the best system of paying to enable the lifestyle for that child. And Sydney, Sydney is a child of divorce, so, oh boy. You know , she, it, it's interesting Matthew, because, you know , you know, th you know, as , as Sydney, as I have been doing this podcast for about a year now, you know, it's interesting, you know, trying to figure out our roses , like , I'm, I'm the guy that sets things up by, you know , know the law and whatnot, Sidney knows things, but she doesn't know why she knows things. And so she's like the expert that doesn't know why she knows all these she's lived in . And so she's lived on the back end of like what you and I are talking, because she is a product of, you know, being a child of divorce into different homes. Um, the city, I mean, with, with, with your parents, was there an alimony or , um,Sydney Mitchell:
I actually don't even know I was veryMatthew Brickman/Matthew Barach:
So shielded Matthew . She hasSydney Mitchell:
Adjusted. That makes perfect sense. Yeah. I I'm I'm, well, I'm fairly positive that my dad was , um, paying alimony. Um, however, yeah, I, you know, like , like you said, I'm not surprised to hear that the more involved with the child is in the divorce, the more, you know, impacts they experience and maybe negative consequences. And luckily I was fortunate to be kept out of a lot of those things. Now, granted, you know, just typical everyday life in the house, you know, you see some things in here, some things, but ultimately , um, I'm , I'm super lucky to kind of have been left out of, out of that. And so, as you guys are talking, I'm just kind of , even as Matthew and I have done this week, I've just been like putting little puzzle pieces together here and there. And so I'm, I'm taking all this in, I'm just learning, learning kind of the , the backend of how all this works. So howMatthew Brickman/Matthew Barach:
Old were you, how old were you ? Your parents got divorced?Sydney Mitchell:
I was three. So I've always been my parents being divorced. I never re I, you know, I don't remember them being in a house together. So , um,Matthew Brickman/Matthew Barach:
So build it that well that you have no idea, but , but you and I are sitting and talking your, your lifestyle, the activities that you were involved in, like that still just went on. Like there wasn't a , there wasn't a change there, right? Yeah .Sydney Mitchell:
Yeah. Um, you know, like I said, you know, they divorced when I was super young, so I can't really compare what my life was like before I was three versus, you know, the rest of life and adulthood. But , um, but yeah, I mean, my parents were , were cordial and I didn't really, I wasn't really aware of a lot of the things that were kind of happening behind the curtain. Um, you know, at one point my, one of my parents was thinking about fighting for like full custody at the time of me. And yeah , I found that later on in adulthood and I'm like, oh my gosh, I had no idea. And so as I'm starting to get older, you know, I'm kind of again, just fitting some of these pieces together. But , um, but yeah, so it's, I've , I've beenMatthew Brickman/Matthew Barach:
Less than that. The person you just brought up in a one to just , uh, ask man real quick so that , you know, you know, we had said at the beginning that you had a landmark case with alimony reform and child custody and Sydney just brought up the child custody aspect. What, what, what was, what was involved with that? With the landmark case that I am involved in involves a very difficult topic , um , related to custody. And that is a removal, which is , uh , we call it , we call it removal, taking a child out of state, and that, you know, that those cases are probably the most heart wrenching cases folks have , uh, because you know, that it changes the family dynamic , um , completely. And we we've had, there's been different the case law over the years, it has developed what , one of the case law that the tree developed over time , uh, the , we developed a Massachusetts that came from New Jersey. I think other states have it as well was what's called the real advantage standard, which was, you had to show a judge that, and this is in the analysis was always different depending on if what the custody arrangement is or was . So if it was a 50, 50 custody arrangement, that was sort of different analysis, more Bessinger than the child, but where we're often comes up historically was, or one parent would have majority physical custody of the child or the children. And in those situations, the standard was what was called the real advantage standard. It's still called that. And that was sort of the person, the primary parent would to show a judge that there was a real critical, real advantage to the move. Uh, and you know, those are things like a job or going to school or a new marriage or those kinds of things, and then how that would benefit the child. And then you had a part of that analysis show, what the parenting times tuition would be with the non custodial parent. And so that standard developed over time that standard , uh, most states moved away and moved away from that standard. And the standard is more prevalent today is what is in the best interest of the child, which is the Seminole standard here in Florida standard for child custody. And for some reason, you know , people moved away and sort of the special analysis for removal cases. And , uh, what would it became was sort of this dichotomy between the parents that have 50 50 custody versus the , the other parent that , you know, there were parents that were, was a two third , one third term kind of schedule. And so the argument across the country that were changed is that they started really just saying, look, it's all best interests . You know, what's, what's best for the child. That really should be the standard, the universal standard across the board when somebody is seeking to remove. And so we had a case where , uh, I was arguing a similar issue and what I argued to the court was, was serendipitously about three weeks before my oral argument in front of the masters in Supreme court with the New Jersey standard, where our case was called, the honest and confront , uh , New Jersey threw it out and adopted the best interest standard. Literally it got like two, three weeks before I argued it. So I argued , um , in front of the court that , uh, the standard really should be essentially the best interest . That's where standards going that nationwide, that's where it's become. And then I said, look, the factors that were of our jurisprudence related to real manage, don't go away. You can look at the advantage for the real advantage for the mom and the child as part of a best interest of the child standard, but ultimately what's best for the child should determine whether or not the party is allowed to remove. And so the court essentially what they did was the, they, because we hadn't briefed it , uh , they said, well, we'll, we'll, we're not going to completely overturn it. And then they went into great lengths in my case, and sort of said basically overturned when there was a concurring opinion , um, by our former , uh, uh, chief judge. And he, he argued and he just reportedly passed away, but he argued that we should adopt the best interest standard and what the majority opinion said was, look, just bring up the case or we're going to adopt it. So I still haven't had that case yet. I'm waiting for that next case. So people come to me all the time hasn't quite happened yet, but for all practical purposes, we've what I tell people when they consult with me is like , you know, if we're going to go forward, you know, somewhere along the line, I think it gets the point where it gets appealed. The best interest of the standards is really what's going to prevail in front of that court. And that's true. I think, I think almost, I think the vast majority I haven't looked at in the last couple of years, but when they argued that two years ago, I, the vast majority, even at that time have already adopted the message . Is that what Florida has for removal? Yeah . I mean, we've had, everything is best interest of the child. And then there's a whole bunch of factors. Like, like you said, where, you know, you know, basically you've got to prove the job that, you know, the support system, you know, you got to go through and do that. It is one of the hardest things to do because it will absolutely change the family dynamic. I mean, you know, I mean , even if you're doing like a 60, 40, and all of a sudden you're out of state, you're like an 80 20 , um , I mean , I had to item mediation number of years ago where they, you know, mom was , um, was, had gotten remarried and wanted to move the kids out of the country. Um, it granted it was just down to The Bahamas, but still for Florida, it's still out of the country. Um, and dad , uh , dad was , um, dad was also remarried and he wanted the kids here. And so I , I immediated with them and it got to a point where it's like, look, they're going to need a guardian ad litem. And so they were arguing over well, who could potentially be a guardian? The attorneys were arguing and I'm like, I'm a guardian too . They're like, oh, we would love you to be our guardian. Yeah . So actually, so, so I actually , um, I actually was the guardian on the case. So I went down to the homicide and I mean , I went through every factor in this and this no wonder you took that case. So , so went down there. Um, and , and so I had to go through every factor in the statute and I mean, Matthew, who was, it was, it was a 70 or 80 page report that I gave to the court that said, okay. And I mean, I looked at everything from crime statistics to even even medical because they were on an island in The Bahamas as opposed to being in west Palm beach, Florida, Mike , you know, I mean, so , and then, and then I had to interview, I went to both the schools, interviewed the school masters and they were in a charter school in Florida, private school down in The Bahamas. One of them was the British education system, opposed to the American education system. I had to, you know, like, like with the , with their standardized scores, they would go to England to be, to be grading . And it's like, okay, well, what's the level of education. And then we had to look at the time sharing and the relationship, well, one of the biggest factors was, was , um, was mom worked from home and dad had his main job in a second job. And so basically his new wife would be spending more time with the kids, opposed to him and opposed to just being with mom. Well, then the second biggest factor is a Porsche travel. Like how do you transport these kids to optimize the timesharing ? Well, the wonderful thing was mom's new husband and it's like, the factors couldn't have fallen more perfect, but the mom's new husband, well, he was a pilot. He and he, and he has his own airplane and his dad owns the airport down in the islands. Well, so we will do a hundred percent of all the transportation done, you can really optimize. And so what was interesting is then also the breaks on the British calendar versus the United States calendar, they got longer breaks. And so actually dad's time sharing was, was optimized. It wasn't just quantity, but also quality. And , and so it all worked out and it was funny even dad's attorney when they got the report back and they're reading it going, I want to go live here . Right. But yeah, we had to, you know , had to go through all the factors for the court and still , you know, the report is still suggestive to the judge. Like the judge isn't going to do all this research. It's up to the judge. It was still ultimately up to the judge, but both mom and dad came together. The kids, you know, when I've been friends with them, both of them on social media, the kids are thriving. They're doing great through the years, but it is one of those things where it's, it's tricky. I mean, they're tough. They're, they're such difficult gut-wrenching cases because they really, they probably impact the family more than even a divorce in some ways, because it just, it , you know, and , and it's tough because we live in a very mobile society. We have high technology , so people can stay in touch with you never face time and all those things. So, you know , but is that enough that physical touch, like having the facial will not disband , right. Yeah . So Matt, I so appreciate you coming on today. This has been so much fun. Well , it's been great. Thank you so much for having me. I really, really appreciate it. Like , I , I want to see that pandemic language you haven't granted, so make sure you're over . That sounds good. I'm going to send over that . Yeah . You know what? I'll send it. I'll send you a draft of my mediation agreement, parenting plan, copy and paste, whatever you want. I mean , I've adjusted it as life has happened to be like, Hey, this is what I've got, but again, trying to be proactive and preventative maintenance as possible. Awesome. I love it. Well, thanks again. Appreciate it. Thank you. Thanks guys. Have a great day. You too.Matthew Brickman:
Occasionally Sydney and I will be releasing Q & A bonus episodes where we will answer questions and give you a personal shout outSydney Mitchell:
If you have a comment or question regarding anything that we discuss, email firstname.lastname@example.org that's email@example.com and stay tuned to hear your shout out and have your question answered here on the showMatthew Brickman:
For more information about my services or to schedule your mediation with me, either in person or using my iChatMediation Virtual Platform built by Cisco Communications. Visit me online at www.iMediateInc.com. Call me at 561-262-9121, Toll-Free at 877-822-1479 or email me at MBrickman@iChatMediation.com.