Wednesday, April 29, 2020

Massachusetts allows remote notarization of documents during the Corvid-19 emergency

Massachusetts is under a shelter in place emergency order due to Corvid-19 (Coronavirus).  This order creates social distancing but permits business to occur if it can be done with social distancing.  People still have the need to execute documents.  Some of these documents need to be signed before a notary public.  Massachusetts government has recognized the need for documents to be signed before a notary public during this emergency by passing a law to allow remote notary witnessing of documents.  This law went into effect immediately upon the Governor signing the law due to the emergency nature.  The law expires three days after the Governor’s declaration of emergency terminates.

This bill has a number of requirements for remote notarization.  The following is a summary of the requirements of the new law:

Notary must witness signing of document by video and acknowledgment by principal
Notary and Principal are physically within Massachusetts (Principal swears or affirms this to Notary)
Principal discloses all other people in the room with Principal
Principal provides Notary with proof of identity
Government issued
Photo ID
ID displayed on video and then image of front and back emailed or faxed to Notary or sent with document
Original document sent to Notary by delivery or courier service
Notary record retention 10 years
If the document being notarized relates to the title to land the principal and notary must have a second video conference in which the principal verifies that the document received by the notary is the correct document.  A second form of identification is also required.
When notary affixes notary seal the recital must indicate that the document was remotely acknowledged
Notary executes an affidavit in which the notary states compliance with all of the requirements under the statute and retains the affidavit for 10 years.
Certain documents may only be notarized by a notary public who is also a lawyer or a paralegal working under the supervision of a lawyer.

Attorney Alan Pransky is also a notary and can assist people who have a need to have documents signed before a notary public.

Wednesday, March 25, 2020

Massachusetts emergency declarations and court ordered parenting time (visitation).


In an effort to fight the spread of Covid-19 (coronavirus) Governor Baker has issued emergency declarations and Health care advisories to enforce social distancing. He has declared a public health emergency. He has closed all non-essential businesses. He is trying to force Massachusetts residents to stay six feet away from other people. The Courts have issued their own set of rules for functioning during this emergency in which they are closed for all purposes except emergencies. What happens to Court ordered parenting time during this emergency?  

Chief Justice of the Probate Courts has issued an open letter addressing parenting time during the Covid-19 emergency.  This letter states that parenting orders must be followed unless the parent or child are quarantining.  The letter has several links that are helpful and discuss parenting in more specifics.

If there is a court order that specifically calls for parenting time during the Covid-19 emergency then those orders must be followed. Very few court orders will meet these criteria.

In all other cases, the parents should cooperate to allow parenting time in compliance with both the court orders and the emergency orders to the extent possible.  The ideal visit would keep the parent and child six feet away from each other.  A visiting parent can meet the child at the child's home and take the child for a walk, biking, or hiking. Perhaps the parent and child can have picnic. During these activities they can stay six feet apart.

However, if a visiting parent insists, then that parent can transport a child in a car or take the child to the visiting parent's home. The parent should not be able to take the child to a restaurant or a movie theater as these should be closed.

If visitation is being curtailed by agreement of the parents then the parents can increase telephone or video communications between absent parent and child.

Hopefully parents will agree on methods to allow parenting time and still keep social distance. In most cases, if the parents can't agree they can return to court to work out such matters. At present, the courts are closed for matters like this. A visiting parent who thinks that the other parent is violating court orders by denying parenting time won't have any remedies until the emergency is over and the courts reopen. At that time, the visiting parent can file a contempt action.

A contempt for violation of a court order has three elements:

      1. A clear court order
      2. A clear violation of the order
      3. The ability of the other parent to comply with the order.

In light of the Chief Judge's letter it is likely that Judges will make findings of contempt if a child is not permitted to accompany a visiting parent without something more than the declaration of emergency.  If someone shows symptoms of covid-19 they should be isolated.    A finding of contempt should not issue if a parent appeared to violate a court order to protect the safety of the child or the parent.  Protecting a child from exposure to someone with active symptoms of covid-19 is likely to be found to be necessary to protect the child and other family members.

Hopefully parents can cooperate during this emergency. However, if they cannot, consulting an experienced family law attorney may help the parties resolve the issues. If a parent thinks that a true emergency exists and they should file an action in court before the emergency is over, then they should consult an attorney on bringing an emergency action.

Saturday, February 8, 2020

Can a dead man's sperm be extracted for directed conception in Massachusetts?

Two recent news stories related stories of extracting sperm after a man died for purposes of conceiving a child. In a story from California, a man died in a traffic accident and his widow had his sperm extracted and then, through in vitro fertilization, conceived and gave birth to a child. In a case from New York, Matter of Zhu, a man died in a skiing accident. His parents went to court for permission to extract his sperm. The Court ordered the sperm to be extracted and given to the parents to make all decisions about conceiving a child.

This article addresses the possibility of extraction of sperm after a man's death in Massachusetts for the purpose of a directed conception. I use the term directed conception to mean conception for the purposed of creating a legal and biological child of the deceased man. The term does not include donation to a sperm bank where the sperm can be used for conception but the child conceived will not be the legal child of the male donor. A directed conception creates moral, ethical, and legal issues that don't exist with a non-directed conception.

The first post-mortem sperm extraction that resulted in the birth of a child occurred in 1999. Since then legislatures and courts around the world have addressed the issued. In 2002 the Massachusetts Supreme Judicial Court addressed the matter in terms of a post-mortem conceived child having inheritance rights and the status as the child of the deceased.

In certain limited circumstances, a child resulting from posthumous reproduction may enjoy the inheritance rights of "issue" under the Massachusetts intestacy statute. These limited circumstances exist where, as a threshold matter, the surviving parent or the child's other legal representative demonstrates a genetic relationship between the child and the decedent. The survivor or  representative must then establish both that the decedent affirmatively consented to posthumous conception and to the support of any resulting child.

The court did not address the issue whether spouse or a parent has the right to obtain the post-mortem extraction of sperm for the purpose of conception. It is possible that a spouse or a parent may want to create a biological child even if the child is denied the legal status of an heir of the deceased.

Massachusetts has enacted the Uniform Anatomical Gift Act which allows for “transplantation, therapy, research, or education” of parts of a human body after death. The language “transplantation, therapy, research, or education does not, necessarily, include harvesting sperm after death for creating an embryo. Certainly parties can argue over the interpretation of this language and, like other jurisdictions, can go to court to resolve the issue. An argument can be made that the Uniform Anatomical Gift Act does not address extraction of sperm for the purpose of conception.

One answer to the questions posed by post-mortem sperm extraction is that the intent of the deceased must control. Legislation and court decisions from most jurisdictions look to the intent of the deceased. Lawyers, when creating estate plans for male clients should address this matter.

While it is not clear that the Anatomical Gift Act will control post-mortem sperm extractions, the formalities of that law for establishing a persons permission and intentions for anatomical gifts should be recognized by courts to establish intent for post death conceptions. The protections afforded the deceased by this act should satisfy any judge who hears a case of this nature.

I suggest that when attorneys discuss estate planning with age appropriate males that they discuss posthumous sperm donation. They should ask the client about the following:

  • Does the client want to donate sperm to a sperm bank?
  • Does the client want to donate sperm to a specified recipient?
  • If the client directs a recipient for the sperm does the client want any child conceived from the extraction to be a lawful heir of the client?

If the client wants to leave instructions for a sperm donation then the lawyer should prepare a document that complies with the formalities of the Massachusetts anatomical gift act that states the client's desires. Any man that wants to permit such sperm extraction should consult an attorney to prepare a document that reflects his desires.











Saturday, May 11, 2019

How to communicate with your Ex by email and text.


     After a couple separate or divorce they will need to communicate with each other on many issues. This is particularly true if there are children as the couple will still be parents and need to cooperate for the rest of their lives.  Divorce attorneys generally recommend   email and text communications  as the parties are bound by the written communication and the email or text may be shown to a judge. Despite the potential for presenting the emails to a judge, some people use emails and texts as an opportunity to abuse their spouse. Abuse may have been the customary method of communication during the end of the relationship and one party may not even understand how destructive such abuse can be. I have the following suggestions to parties to make communications better.


1) Forget about your history with your Ex. It is harmful to communications to continue to mention past wrongs. Telling your Ex how they made bad decisions or acted badly just alienates your Ex. If you want something done, simply ask you Ex to do the things you want done. If your Ex responds by asking for reasons then you can explain your thinking on the subject. Many times, the other party will merely comply with a reasonably stated request.
 
2) I was taught as a child to always say please and thank you. This is excellent advice for email communications. If you are asking for something, ask politely and say “please”. When you get a response, say “thank you”. You should say “thank you” even if you don't like the answer. It doesn't hurt you to say “Thank you for responding.”
 
3) Be clear in your communications. The more clarity provided the fewer mistakes are made.
 
4) Don't make threats. At least don't make threats in the first communication. While it may be appropriate to make threats later, starting with threats is never a good idea.
 
5) Don't state the obvious. If there is a court order for vision insurance, don't start by stating the terms of the divorce judgment. Your ex-spouse should know this. Politely ask for the vision insurance cards for the children. This should be sufficient on the first communication. Perhaps the second communication will require you to explain his obligations under the divorce. On the first communication assume your Ex knows what he is suppose to do.
 
     In short, treat your Ex-partner like a stranger.

     Successful communications between former partners may reduce litigation and attorney fees.


Monday, April 29, 2019

How to make property division in a divorce easier.


There is no greater waste of money in a divorce than fighting over divisionof small personal property owned by a couple. The attorney fees spent to argue over beds, sofas, kitchen table, tvs, and other household items usually exceed the value of the items. A dining room set purchased for $5,000.00 may be valued in a divorce at $300.00. As used furniture, the set may only be sold at a garage sale. Most household furniture is valued based upon what can be realized for the asset at a garage sale. It is simply cheaper to go out and buy an equivalent item than to pay attorneys to fight over it. Of course, higher value items such as house, retirement accounts, investment accounts, and collections are worth the cost of paying for appraisers and attorneys. I suggest that the parties approach division of household items with consideration of the following issues.

If there are children, the children should be given priority. The children's furniture should remain with the parent who has more parenting time than the other. The rest of the furniture in the house should also take into account the children. If there is only one tv it should remain in the house with the children. If there are two tvs then the parent with the children should get the better tv.
Most households currently have a car for each parent. Unless a car is a collector's item, each party needs a car to function in today's society. In almost all cases, judges award the cars to the party who primarily drove each car prior to separation. Cars are generally viewed as a necessary tool and not as an asset.

Both parents should try to be fair about division of household items. Any unfairness is usually met with a large increase in attorney fees. The problem is that the parent who doesn't get the household items needs to go out and purchase new items. The need to make such purchases as well as a rental security deposit and last month rent should be recognized and money should be set aside for these expenses. Treating each other fairly means that both parents end up with adequate furniture and living arrangements. This can be accomplished by possession of existing items or money to buy replacement items.

Parties need to identify items of sentimental value to the two parties and cooperate to allocate the sentimental items to the appropriate party. Family heirlooms should go to the party who broguht the item into the marriage. Again, the countervailing value is money set aside to purchase a replacement item.

Items that are only used by one party should be offered to that party. A riding lawn mower that had been used exclusively by the husband may never be used by the wife who intends to hire a service to mow the lawn. If the wife sells the mower without the husband's permission it will be a violation of the automatic restraining order and have the effect of a declaration of war that will cause the husband to fight over trivial matters. Giving the husband opportunity to take the mower or have both parties sell the mower and divide the proceeds will result in a better attitude from both parties. 

Pictures and videos are frequently the subject of litigation. It will save money if the parties pay to have the pictures duplicated so that each party can have a set. Sometimes the parties will agree to purchase a scanner so that one party can copy all pictures and give the originals to the other.

Division of personal property can be a huge drain of financial resources if the parties choose to fight over the assets. This large expense is seldom worth the money required to have the judge resolve the division. An experienced divorce attorney should be consulted to learn how the law applies to your case and to look for an inexpensive logical solution to property division.



Sunday, February 24, 2019

When will an annulment be granted?


A judicial decree of annulment is a declaration that a marriage never existed. There are a number of reasons why a judge may grant an annulment but this is disfavored by judges who prefer to grant parties a divorce.

A marriage requires two competent people to go through a wedding ceremony performed by a person who is vested with the power to marry people. The formalities of a wedding require the parties to create a contract between and to comply with all state requirements. An annulment can be granted if no valid contract was created at the time of the marriage ceremony or if there was a failure to meet certain state requirements. Not every failure to comply with state procedures will permit an annulment and, in some instances, the conduct of the parties over a period of time could result in ratification of the marriage thereby making the marriage valid. An annulment can be granted if there was a lack of consent to the marriage, or a legal impediment to the marriage.

A lack of consent can occur if there was fraud relating to the essence of the marriage, duress, or mental incapacity. Not every fraudulent statement goes to the “essence” of the marriage. Examples of fraud that arises to this level are: false statements about intent to cohabit or have sexual intercourse, false statements about pregnancy and paternity of the unborn child, false statements about religion, and false statements about intention to have children. Other false statements such as statements about finances may not be sufficient to go to the “essence of the marriage.” Fraud requires a fact to be misrepresented. However misrepresentation is not the same as concealment. Failure to discuss intent to have children is a concealment and not a fraudulent misrepresentation. To obtain an annullment there must have been an actual statement made on a topic that goes to the essence of the marriage.

The grounds of duress means that at the time of the wedding ceremony a party was under duress of a level that they were unable to exercise free will. An example of this is a shotgun wedding. The threat of bodily harm or death for failure to go through the ceremony is sufficient for an annulment.

Mental incapacity can occur when a party is under the age of consent or has a mental disease or defect that interfere's with their ability to form the intent to enter into a contract. However, if a party lacks mental capacity they may be able to get married if a parent or a guardian consents to the marriage. State law varies on the age of consent and procedures for obtaining permission for incompetents to marry. It may be necessary to obtain permission from a judge to make the marriage valid.

An annulment can be granted if there is an impediment to a marriage. This means that one party to the marriage is married to another person and the prior marriage had not terminated at the time of the new wedding ceremony.

Every State prohibits certain people from getting married. The list of people prohibited from getting married is based on close family relationships. Siblings can't get married and parents can't marry their own children. Most states prohibit marrying step-children or parents-in-law. The list varies from state to state.

Annulment is a complicated area of the law and is generally difficult to obtain. In comparison, divorce can be obtained based on no-fault grounds. This means that the parties could go through a protracted trial to determine if an annulment should be granted but at the end still be married. In a no-fault divorce, the parties never contest the issue of whether a divorce should be granted. A judge must grant a no-fault divorce but does not have to grant an annulment.

If you are considering an annulment you should consult a family law attorney who can discuss your options and advise you concerning both annulment and divorce.





Tuesday, December 25, 2018

My spouse married me to get a green card. Can I get an annulment?


A green card is a nickname for authorization from the United States Government for an immigrant to live in the United States permanently. In the past, an immigrant who married a U.S. Citizen could apply for permanent residency.1   When a citizen concludes that their spouse married them for the sole purpose of getting the green card and wants nothing to do with the citizen spouse, what can the citizen do? Can the citizen get out of the marriage?

An annulment is a judicial decree that that a marriage never existed. It is commonly thought that an annulment is easier to get than a divorce and less can't result in property division or alimony. However, in Massachusetts, this is not correct. An annulment can take as long as a divorce to obtain through the courts. In an annulment, a judge can award alimony, divide property, determine custody of children, and award child support. In other words, an annulment in Massachusetts is the same as a divorce except that it is much harder to get.

Massachusetts has no fault divorce which means that there is no defense to a divorce action. If one party says that want a divorce then that proves that the marriage is irretrievably broken down. That is not the case in an annulment. There is no such thing as a no-fault annulment. Every annulment must be based on specific grounds. The other spouse can contest the grounds and a judge has discretion and may find that the facts don't prove that an annulment should be granted. The result is that parties can go through a trial for an annulment and still be married after the trial. This would never happen in a divorce.

One of the reasons for obtaining an annulment is fraud. In Massachusetts, not all fraud arises to the level of obtaining an annulment. The fraud must go the “essence of the marriage.” This means that the fraud must be of such that it addresses one of the essential reasons people get married. These reasons include a desire to cohabit, have sexual intercourse, and to have children. Other reasons could go to the essence of the marriage but don't have to.

Usually, if a person gets married to obtain a green card there is no discussion about green cards. As such, there is no false representation constituting fraud. Failure to disclose something is considered a fraudulent concealment. Fraudulent concealment is not a basis for an annulment unless the concealment goes to the essence of the marriage. Failing to disclose an intent to not cohabit is sufficient for an annulment. Failing to mention that the marriage is to obtain a green card does not. In Massachusetts, failure to disclose an intent to get married to get a green card, without other facts, is not sufficient to get an annulment. However, intention to get the green card with other facts may be sufficient for an annulment.  If the parties get married, live together, have sexual intercourse and after a short period separate then it may be very difficult to show that the immigrant spouse did not intend to participate in a marriage when they went through the wedding ceremony.

If you got married and want out of the marriage because your spouse wanted to get a green card you should get a divorce and not an annulment. If you want to consider an annulment you should consult an experienced family law attorney who can advise you of your rights.










1Alan Pransky does not practice immigration law and does not know the current rules regarding immigrant spouses and green card applications. Anybody interested in obtaining a green card should consult an immigration lawyer.

Monday, December 17, 2018

Has your spouse run away?


An entertainment company is creating a documentary TV series for a cable network about individuals with a significant other (a spouse OR a long-term boyfriend/ girlfriend) who has run away and is no longer in touch (ie: "disappeared" or "gone missing"). The company is looking for people who suffered a victimization of this nature. The show seems to be based on selecting individuals an then using experts from the TV series, including private investigators, to locate the missing spouse or partner. Anyone in this situation who is interested in having their story in the show can contact melissa.casting@gmail.com
Include: Full name, age, phone#, current city& state, spouse's name, number of years married, photo of the two of you together and brief description of when/ how they disappeared.

Of course, people can get divorced even if their spouse has disappeared. The law would not sentence someone to perpetual marriage merely because the spouse chose to disappear. Service of legal process can be accomplished by other methods such as by publication, relatives, or even social media. While a person can get divorced with a missing spouse it doesn't mean that they can recover assets, alimony, or child support. The missing person may have to be located before money can be collected. Experienced family law attorneys know how to locate missing people. While no attorney will have success in all missing person cases, they will be able to find some people. They will also know what legal action to take after a person is located.

Saturday, November 3, 2018

In Massachusetts the spirit of restraining orders must be obeyed as well as the letter of the order.


Until recently I advised clients that they could not be convicted of violation of a restraining order in Massachusetts unless three elements were proven:
1.  A clear order
2. A clear violation; and
3.  An ability to comply with the order.

The first two elements are fairly clear. The third element covers situations like a chance encounter in a store or a restaurant. A chance encounter should not result in criminal conviction. This still seems to be the status of the law.  However, a series of recent cases changed the element of a clear order. Now, a person subject to a restraining order must obey the clear language of the order as well as the intent of the order.

In the case of Commonwealth v Telcinord a woman was ordered to stay away from her husband and to stay 50 feet away from him. She followed him in her car as he drove his car. Presumably she stayed the requisite 50 feet away. She was convicted of violating the restraining order because following in her car was a violation of the order to stay away. The defendant's behavior by the way she drove her car indicated that she wanted her husband to know she was following him and that she intended to confront him.

It appears that engaging in behavior that is intended to cause the protected person to become aware of the whereabouts of the defendant is a violation of the restraining order. A restraining order is intended to insulate the protected person from the presence of the defendant or from any form of unauthorized contact. Any intentional contact that causes the protected person to see the defendant may be considered to be a violation of the order.

In Commonwealth v Goldman, the Court explained what “stay away” in a restraining order means. Stay away
prohibits a defendant from (1) crossing the residence's property line, (2) engaging in conduct that intrudes directly into the residence, and (3) coming within sufficient proximity to the property line that he would be able to abuse, contact, or harass a protected person if that person were on the property or entering or leaving it. A protected person need not actually be present for such a violation of the order to occur.

Stay away can no longer be interpreted as a set distance. It is a concept that the person should stay far enough away from the protected person and their home so that the protected person can go about their activities without coming into contact with the Defendant. Truly accidental contact won't be a crime but contact in the vicinity of a protected person's home or work is likely to result in a conviction for violation of a restraining order.

If you are subject to a restraining order I recommend that you contact a lawyer familiar with restraining orders so that you understand what you are permitted to do and what you are not permitted to do.








Monday, October 1, 2018

October is National Bullying Prevention Month


National Bullying Prevention Month is an annual campaign to unites communities nationwide to educate and raise awareness of bullying prevention. Bullying can occur at any age and among any group in society. Children are the usual victims of bullying. If bullying occurs in school it can continue for years as the same group of children interact in school year after year. As a result, the bullying can continue year after year. Childhood bullying is frequently dismissed as insignificant or as normal child activities.

Bullying can be devastating to victims. Nobody likes to be a victim. When the bullying continues for a prolonged period, it can destroy self-esteem, create depression, and anxiety. In extreme cases, the victims may attempt suicide.

Pacer.org created National Bullying Awareness Month to combat bullying through community partnerships and resources. Their goal is to decrease bullying by education and support.

If you are a victim of bullying, you need to report the conduct to parents, school, and even police. Depending on the specific actions, the bullying may be criminal. There are resources on the Pacer web site for victims of bullying. Bullying should never be tolerated.

Saturday, August 11, 2018

Massachusetts allows conditional guilty pleas.


In criminal cases defendants often bring motions to suppress evidence (exclude evidence from trial) based on arguments that the evidence was seized in violation of defendant's constitutional rights. These motions typically argue that evidence was seized in violation of constitutional rights against unreasonable search and seizure or a confession was obtained in violation of defendant's right against self incrimination. The motion is filed in the trial court before the case goes to trial.

Previously, if the trial judge denied the motion to suppress, the defendant had a very difficult choice: either take the case to trial and preserve the right to appeal this ruling or accept a favorable plea agreement from the District Attorney which means that the defendant pleads guilty and gives up the right to appeal the ruling on the motion to dismiss. The Massachusetts Supreme Judicial Court just changed this by allowing the Defendant to make a conditional plea of guilty.

A conditional plea of guilty allows a defendant to plead guilty to take advantage of an offer of settlement from the District Attorney and still have the right to appeal the trial judge's ruling on the motion to suppress. If the appeals court rules that the evidence should have been suppressed, then the guilty plea will be vacated and the defendant will be able to have his case go to trial or have new discussions with the District Attorney for a different plea agreement. In many cases, without the evidence that can not be introduced the District Attorney may choose to drop the prosecution and dismiss the criminal case.

Allowing conditional guilty pleas is likely to cause more defendants to plead guilty thereby reducing the cost of defending the case for defendants and reducing the number of cases that go to trial. It is expected that the judicial system will save money and resources as well. If you have a criminal case you should consult an experienced criminal defense attorney who can give advice on conditional guilty pleas.

Saturday, July 21, 2018

Smart Homes and Divorce


People now have the ability to interact with their homes in a way that wasn't even imagined ten years ago. We now have the ability to control things when we are away from our homes. We can turn lights and appliances on and off. We can change the temperature in the home by controlling the thermostat.  We can set off alarms, activate cameras and look inside the home, and speak through devices to people in the home and outside. We can track cars and cell phones. We can even monitor driving habits.


All of these smart applications are designed to make our lives better. However, they can allow a new type of abuse and harassment when a couple split up and one partner moves out of the home. The person out of the home can now control all of these devices and use them to annoy or abuse the partner in the home. Imagine the distress created if one partner finds out that their whereabouts have been tracked by a smart application on their phone or car. People can be hit with large heating and utility bills if the heat is turned up or lights turned on when a person isn't home.

No matter how much trust exists within a marriage, precautions should be taken when a couple separate. The first thing that should be done is to change all passwords for all devices. You may be able to block the other partner from using the applications. All accounts for these items can be transferred into the name of the spouse in the home. The other thing that can be done is to get a court order that prohibits the other person from using the applications.

In most divorces, the partner remaining in the marital home obtains a court order that gives that person exclusive use of the home. Sometimes a similar order issues for use of cars. It is a simple matter to add language that prohibits the other partner from using any smart applications or devices that impact the home, car, or cellphone. Violation of this order can result in sanctions from the court.

Perhaps the biggest fear is that one spouse can track the movements of the other and then use this information in court in a divorce trial. Obtaining an order that prohibits use of the tracking applications should prevent any use at trial of this type of information.

Any time a household breaks up and results in a divorce or other litigation the parties should consult an experienced family law attorney. This attorney can give advice and propose a course of action to minimize problems from smart technology and to obtain a court order to prohibit abuse by smart technology.

Saturday, July 7, 2018

Will the Child Tax Credit be a substitute for the Child Dependency Exemption?


Starting with tax year 2018 the dependency exemption does not exist anymore. Tax law, in an effort to simplify returns has eliminated the dependency deduction. Instead there is a Child Tax Credit which can be worth up to $2,000.00 per qualifying child.
The IRS has not published publication 504 (Divorced or Separated Individuals) for 2018. As a result, it is not clear if parties may agree which parent will receive the Child Tax Credit. While experts expect that the Child Tax Credit  may be allocated from one parent to the other by agreement, it is possible that only the custodial parent will be able to receive the credit.

The IRS may allow parties to specify which parent will be able to claim the credit. If that happens then existing judgments need to be examined to determine if the language about dependency exemptions may apply to tax credits. If not, then parties may need to file a modification to have the Child Tax Credit treated as the Child Dependency Exemption had been treated. A modification may be necessary for obtaining cooperation of the other parent or it may be a requirement under tax law for allocation of the credit.  A modification by agreement of both parties can qualify for a simplified procedure as a joint petition to modify.

Interpretation of your divorce judgment, modification of a prior judgment, and understanding the Child Tax Credit may require the assistance of a family law attorney.