Health Insurance, Emancipation, and Separation Agreements

In Massachusetts divorces health insurance is a priority concern for judges. It is standard practice to

provide health insurance for children until they are emancipated. In addition, unless there is a remarriage, health insurance is usually provided for an ex-spouse until all children are emancipated. The ex-spouse is may also be included in coverage because in Massachusetts most family health insurance policies cover an ex-spouse at no additional cost. As long as there is a dependant child, a family health insurance policy is needed. It is now time to reconsider the standard approach to health insurance in separation agreements.

Under prior law, once a child graduated from college or was otherwise emancipated, they had to get their own insurance policy. The law did not allow them to be covered under their parents' policies. Obamacare has changed this. We can now cover children under a parent's policy until age 26. If a parent is going to provide insurance for a child after emancipation they should also cover the ex-spouse as well. While a parent may voluntarily cover a child they may find that employers won't cover an ex-spouse unless there is a court order that requires such coverage. Divorce attorneys should anticipate the ability to cover the ex-spouse for an extended period due to Obamacare and draft language to address this.

Not every child will need health insurance coverage from a parent after emancipation. Many children will find employment and obtain health insurance from their employer. If this happens, there won't be a family health insurance policy available to cover the ex-spouse. Whatever language is used in a separation agreement needs to consider this potential.

There is also the issue of the cost of providing post-emancipation health insurance for a child. A family plan will always cost more than an individual plan. Child support in Massachusetts presumes that both parents will contribute to the cost of raising a child. It would be reasonable for the parents to share the cost of post-emancipation health insurance for a child. While a judge can't order health insurance for a child after emancipation, the parties can contract for such insurance. Splitting the cost of the health insurance would constitute consideration to support the contract. In the event the parties later litigate over the enforceability of such a contract, splitting the cost may make the difference between enforceable and non-enforceable.

A good separation agreement should anticipate as many possible changes as possible. Planning for a child and ex-spouse to continue to have health insurance after the child's emancipation should be part of every separation agreement. An experienced divorce attorney should draft language to provide health insurance for this additional period.

Child support agreements need court approval

Previously, I wrote about the dangers of parents making an agreement for child support and not

seeking approval from a court. A recent case, Zizza v. Zizza, from the Massachusetts Appellate Division (Oct. 27, 2014) is an example of the problems created when parents make an agreement without judicial approval.

In the Zizza case, the parties, after a foreign divorce, entered into a private agreement regarding property division, child custody, visitation, and child support. The agreement also had a clause that stated that the agreement could not be be modified by any court. This agreement eventually resulted in litigation in Massachusetts District Court with the court ordering a modification of the child support obligation. On appeal, the Appellate Division upheld the modification of child support. The court added a comment which explained that the Massachusetts Legislature has declared that it is against public policy to make an agreement that prevents the courts from changing child support obligations.

If you are about to make an agreement for child support you should consult a lawyer who is experienced in family law to make sure you don't fall into a child support trap.

How do you probate an estate in Massachusetts when you can't get a death certificate?

Sometimes people die under circumstances where their body can't be found or can't be reached. Years ago I probated the estate of a man who sailed his boat into a hurricane and was never found. A few years ago there was a story in the news of a man in Florida who fell into a sinkhole and they didn't recover his body. A person can die in the military in a combat zone and his body may not be recovered. In all of these situations no death certificate will issue. Contrary to popular belief, an estate can still be filed.

Most estates in Massachusetts are filed in court with a copy of the death certificate. The death certificate is used to prove the death but it is not the only way death can be proved. The uniform probate code allows death to be proved by other means. If there is an official report such as from the police, coast guard, or army, then the official report can be used to prove the death. Even without an official report, witnesses can give testimony to prove that the person is dead.

In all of these situations, there is evidence that the person died. Witnesses saw the event that killed the person or they saw the body. It is different if the person just disappears and is never heard from again. Merely disappearing does not mean the person has died. In this situation, the family may have to wait five years before they can seek a declaration of death.

If you are in the unfortunate situation of knowing that a relative has died but no death certificate has issued, then you should consult an attorney who can probate the estate and prove the death without a death certificate.

Can a physically disabled adult child receive child support in Massachusetts?

Recently, the Massachusetts Appeals Court ruled in the case of Vaida v. Vaida, Mass. App. Ct. No. 13–P–1827 (November 6, 2014) that a father did not have to pay child support for his adult physically disabled child. At first glance, this case seems to establish that a physically disabled child can't collect child support once the child reaches age 23. A closer examination convinces me that this case should not be considered precedent.

In Vaida, the child was a quadriplegic as a result of reckless conduct of the father. The father had been sued and settled the case for 3.5 million dollars. A settlement agreement and releases were executed. The prior settlement is a barrier to collecting child support from the father. Will the result be the same if there is no prior settlement?

Massachusetts allows child support to be collected for an adult child that is under a mental disability and has a court appointed guardian. Feinberg v. Diamant, 378 Mass. 131 (1979) and Eccleston v. Bankosky, 438 Mass. 428 (2003). With both mentally disabled children and physically disabled children the children need to be supported by others. In both cases, the children are unable to earn sufficient money to support themselves. The children must be supported by either the parents or government. If the parents have the ability to support the adult children, then they should do so instead of having taxpayers paying for the care of the children. I see no logical reason for parents of mentally disabled children to pay child support but not parents of physically disabled children.

There is a legal maxim that states “bad facts make bad law.” The Vaida case contains bad facts of the prior settlement. Hopefully, the next time that a case with this issue is litigated the courts will give the question a fresh look and not rely on the Vaida case. If you have a case involving an adult disabled child you should consult an experienced family law attorney.

Does Massachusetts have a remedy for revenge porn?

For many people, sending a naked picture of yourself to someone is an act of commitment. It shows the degree of affection and trust by sending a picture showing oneself in their most vulnerable exposure. Yet this act of trust can become a nightmare if this picture is posted on the internet. A posting of this nature is called “revenge porn.” It frequently occurs when the relationship terminates. Not only can a posting of this nature cause emotional distress, it can also cause financial harm as it can effect employment and future relationships. Wikipedia definesrevenge porn as “sexually explicit media that is publicly shared online without the consent of the pictured individual.” It includes selfies showing a person naked as well as explicit pictures of sexual conduct.

The best way to prevent revenge porn is to not create explicit pictures of yourself. If the relationship that is terminating is a marriage, then the parties may be able to obtain a court order prohibiting distribution of pictures. I have named such orders as “sexting restraining orders” and routinely include such language in my divorces. However, most people who are concerned with revenge porn are in the horrible position of trying to take action once a posting has occurred.

Some states have created laws that impose criminal penalties for revenge porn. Massachusetts has not created any law, civil or criminal, that specifically addresses revenge porn. Instead, a victim of revenge porn, must look to other remedies after their picture appears on the internet.

A civil lawsuit against the person who posted the pictures for damages can be filed. Such a suit can seek damages for intentional infliction of emotional distress or violation of a right of privacy. However, such a lawsuit can only result in a money award against the person who posted the information. If that person has no assets or files bankruptcy, the judgment may result in no recovery of money. A better way to proceed is to sue the web site that hosts the offending pictures.

Congress created broad protections for web site operators in the Communications Decency Act. However, web site operators are not protected against copyright violations. Under federal copyright law, a picture is the property of the person who created or took the picture. A selfie remains the property of the person who took the picture and not the person who received the picture in a text message. If a selfie appears on a web site, the web site operator can be sued to remove the picture as a violation of copyright law. Unless new laws are passed, this may be the only way to force the removal of the picture.

If you want to prevent revenge porn or find yourself the victim of revenge porn you should consult a lawyer as soon as possible to limit the damage.

In Massachusetts, the odor of marijuana is the same as the odor of alcohol.

In 2008 Massachusetts decriminalized possession of one ounce or less of marijuana. Possession of more than one ounce is still a crime. Needless to say, it is not an unusual occurance for police to encounter automobiles with the smell of marijuana. In the past, the smell of marijuana was basis for a full search of the automobile and the occupants.

Two cases in Massachusetts make it clear that the odor of marijuana, burnt or fresh, by itself, does not constitute probable cause to search the car. In Commonwealth v.Cruz, 459 Mass. 459 (2011), the court held that the odor of burnt marijuana could not be the basis of a search of a car. More recently, in Commonwealth v. Craan, 469Mass. 24 (2014), the court reached the same result for fresh marijuana. Since possession of less than an ounce of marijuana is not a crime and smoking marijuana is not a crime, then the odor of marijuana does not mean that a crime is or has been committed under state law. Mere possession of small amounts of marijuana is still a federal crime but Massachusetts police officers are not permitted to search for evidence of this federal crime since the equivalent crime was decriminalized in Massachusetts.

Both decisions indicate that the smell of marjuana, by itself, does not mean that a crime has been committed. However, operating a motor vehicle under the influence of marijuana is a crime in Massachusetts just as operating under the influence of alcohol is a crime. The odor of marijuana is now equivalent to the odor of alcohol.

If a police officer stops a car and smells alcohol, this does not mean a crime has been committed. However, if the police officer detects symptoms of impairment along with the odor of alcohol, then the police officer may have probable cause to believe that a crime has been committed. If a driver has slurred speech, glassy eyes, exhibited irregular driving, or other symptoms of impairment, coupled with the odor of alchol or marijuana, then the officer may have reason to believe that the crime of operating under the influence occurred. In Massachusetts the odor or alcohol and the odor of marijuana are not treated the same. Odor, by itself, is not a reason to search a car. The odor with some indication of impaired driving can be sufficient reasons to search a car.

Any person who is arrested after a police officer smells marijuana and then searches a car should contact an attorney immediately.

Is sexting naked pictures distribution of pornography?

From time to time I hear stories of the prosecution of teenagers for possession and distribution of child pornography as a result of sending or re-sending pictures through text messaging. Typically, these stories involve a young teenager who takes a naked “selfie” and then texts it to a friend. The friend then sends it to a lot of friends with the result that school officials hear of the distribution of the picture. The police get notified and arrests are made for possession and distribution of child pornography. So, are naked selfies child pornography? Can a person be arrested for texting these naked pictures?

In most cases, naked pictures of one self or “selfies” are not pornography. Even full frontal nudity pictures of young children and young teenagers are probably not pornography. In other words, in order to be considered pornographic, there must be more than just nudity. It doesn't matter if it is a boy or a girl, full nudity or partial nudity, there must be more than nudity to make the picture pornographic.

Since 1973 the United States has had one basic definition of obscenity (which includes pornography):

"(a) whether the 'average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest,
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."  Miller v. California, 413 U.S. 15 (1973),

Legal disputes over selfies taken by children usually focus on the second element of depiction in a patently offensive way of sexual conduct. Naked selfies taken by teenagers are usually pictures of the teenager alone. No other person is in the picture. While some selfies could involve more than mere nudity, the vast majority of these pictures are just nude pictures. In a recent case in Massachusetts, the Court looked at this issue in the context of a convicted sex offender who possessed a number of pictures of naked children while he was in prison. Commonwealth v. Rex, No. SJC–11480 (July 9, 2014). The court found that merely naked pictures cannot be considered pornography. There must be more. Even in the context of a convicted sex offender in prison, nude pictures were not considered obscene. The Court describe six factors to consider to determine if the pictures could be considered pornographic:
“1) whether the focal point of the visual depiction is on the child's genitalia or pubic area;
“2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;
“3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;
“4) whether the child is fully or partially clothed, or nude;
“5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; [and]
“6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.” The Court took these factors from a prior case: United States v. Dost, 636 F.Supp. 828, 832 (S.D .Cal.1986), aff'd sub nom. United States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir.), cert. denied, 484 U.S. 856 (1987).

Nude selfies, without something in addition to the nudity, cannot be considered obscene or pornographic. Texting pictures of this type can not be considered distribution of child pornography. Possession of these pictures on a cell phone or computer can not be the basis for a criminal prosecution.

Hopefully this article will not encourage anybody to take naked pictures of themselves and to text them to others. It is a bad idea and hopefully recent stories of the leaking of naked pictures of celebrities from hackers should be a deterent to people. However, if someone is approached by the police for sending or receiving naked pictures, then they should consult an attorney who can advice them on the laws concerning pornography. It is better to have an attorney intervene and maybe stop a prosecution than having a prosecution started, published in newspapers, and then dismissed. Consulting an attorney quickly may prevent injury through stories in local media.

What is the legal residence of a child of divorced parents?

Many people who get divorced live in different towns from their ex-spouse. They will sometimes choose between the two school systems and send their children to the better school. This means that the better school system will have more students and incur more costs. If a child of divorced parents requires additional services due to special needs, the cost can be substantial. As a result, many school systems try to exclude some students under the argument that they don't reside in the town where they attend school.

According to the law, adults are allowed one domicile or legal residence. Domicile is the place where a person intends to permenently reside. There is a long history of case law that sets forth rules to , determine the residency of adults. The law is much simpler as it applies to children: Children have the domicile of their parents. If their parents don't live together then children can have two domiciles. If the parents are divorced and the parents have joint legal custody then children will have two domiciles. This is true even if they never sleep at one parent's home.

In a recent case, the Town of Wayland formulated a rule to determine if children of divorced parents can attend school in Wayland.  Ames v. Town of Wayland, Middlesex Superior Court (No. 14-6717) (August 13, 2014.) The rule was called the “pillow count” rule and required children to sleep in Wayland for at least three out of five nights. When this rule resulted in a child of divorced parents becoming excluded from the Wayland schools, the child's parents appealed. A Superior Court Justice held that the child may attend the Wayland schools despite the fact that he lived in Wayland only three out of fourteen nights.

In Massachusetts, the Department of Education has always ruled that children can attend school in the school system where one of the parents reside and that the decision belongs to the parents and not the school system. In my practice, I have encountered this problem from time to time. I have found that schools generally drop their opposition when faced with the threat of litigation. Unfortunately, I found that parents have to hire attorneys to make the schools follow the law.

When a couple gets divorced and they have school age children, they should consider the choice of school system at the time of divorce. If you are getting divorced and have school age children, you should consult an experienced divorce attorney who understands the options of school choice.

Jury mistrials caused by the Internet

Many people think that jury trials are proceedings in which a jury looks to discover the truth. In practice, jury trials are a search for justice and fairness. Justice does not necessarily mean a search for truth. Justice, in a court setting is search for a conclusion based on a limited amount of information. The process of a trial is designed to control the flow of information to eliminate information that is unreliable, speculative, and unduly prejudicial. Findings by a jury result in justice and not necessarily the truth because the flow of information is limited. The final result is suppose to be fair with due regard to constitutional rights, statutory limitations, and the system of justiceJudges instruct jurors to avoid outside sources of information. They are prohibited from talking to other people about the case and are prohibited from researching the case. Independent research by jurors can result in a mistrial.

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Some jurors ignore instructions and research facts or law on the internet. Internet usage by jurors sitting on a trial is so common that is has a name: “mistrial by Google.” Research on the internet has become second nature to many people. It is also considered a private matter. Since nobody will search a juror's smart phone or tablet, jurors feel that they are free to research the case. They can look up the lawyers, the parties, news articles, legal concepts, geographic facts, and other matters. Using Wikipedia, jurors can learn legal definitions and history. With Google Maps, they can look at the scene of a crime.

A rule that prohibits jurors from using the internet is doomed to fail. No matter what instructions a judge gives, some jurors will use their computers to research on the internet. Perhaps the courts should encourage some internet use and allow the judge and lawyers to review the material found and work with the information. The judge can instruct that the Wikipedia definition of a legal concept is not the definition in the jurisdiction. This would allow the judge to explain the difference instead of jurors relying on bad law. It is better for lawyers to address incorrect statements in news articles instead of jurors relying on facts created by a reporter.

The Internet has changed many institutions in society. It is time for jury trials to recognize the influence of the Internet and adapt to this technology.

Massachusetts and the right of privacy in our homes.

According to recent stories on the internet, a drone was used to spy on a woman in her home. Two men were seen flying a drone with a video screen showing a display from a camera on the drone. In other words, using the drone as a high-tech Peeping Tom. If this happened in Massachusetts, the men flying the drone could be sued for invasion of privacy.

Massachusetts has a statute, G.L. c.214, § 1B which provides that individuals in Massachusetts have a right of privacy. This right of privacy is greatest in a persons home. In the recent case of Polay v. McMahon, the court held that in the home, “all details are intimate details.” Even if a person's conduct in their home is observable by the public, the right of privacy may still protect against the use of electronic surveillance. Most people should consider using a drone to spy into a person's home to be a violation of the right of privacy.

Drones pose a real and substantial threat to the right of privacy. Private individuals can purchase drones with cameras and use them to look into high rise apartment buildings, spy through skylights, and hover outside windows to look inside. If private individuals can do this, image what law enforcement can do. Based on this recent case, it appears that Massachusetts residents have protection against Peeping Drones.

A person who is victimized by electronic spying should consult an attorney concerning their rights based on their situation. The right of privacy can be difficult to understand and apply.   

Criminal Law and Double Jeopardy by Michael S. Berg, guest blogger

One commonly misunderstood concept in criminal law is that of double jeopardy. The Fifth Amendment to the United States Constitution states that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." However, this is narrowly read and there are some exceptions, and it applies only to cases where a final decision has been entered.

First, it only applies to the same sovereign, meaning the same government. So the same state cannot put you on trial for the same conduct more than once. However, you can be put on trial by two different states or by a state and the federal government. So, say you're accused of running a scam from your house in Florida over the internet. The government claims that you convinced a woman in Georgia to send you money. Even if you're acquitted in Florida, Georgia can still try you without violating double jeopardy, because it's a separate state. The federal government can also try you for any federal crimes you may have committed at this point. 

Double jeopardy also does not apply when you win an appeal. Appealing is when you ask a higher court to review the procedure or decisions of the court that had your trial. If the appeals court agrees with you, they will send your case back to the trial court with instructions on what they need to change. In this case, the court is allowed to have another trial.

The court is also permitted to retry you if there was a hung jury or if the judge had to declare a mistrial. A hung jury means the jury couldn't come to an agreement. Because there must be a legal decision, the case will be retried with a new jury. A mistrial means something went so wrong that it compromised the entire trial. For example, in some high profile cases the jury is sequestered and not allowed to speak with anyone about the case or access any news or media. If a juror violates this rule, the judge may declare a mistrial. Since the trial wasn't completed, there will generally be a new trial.

This article on Double Jeopardy is a guest post from Michael S. Berg , a San Diego based Certified Specialist in Criminal Law who focuses on criminal cases.

My spouse is cohabitating. Can I stop alimony payments?

In 2012, a new alimony law went into effect in Massachusetts. This alimony law contains a provision that reads:

General term alimony shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payor shows that the recipient spouse has maintained a common household, as defined in this subsection, with another person for a continuous period of at least 3 months

This language seems to say that if the ex-spouse cohabits for three months or longer that alimony is automatically terminated, reduced, or suspended. However, that is an incorrect interpretation of this law.

The payment or non-payment of alimony is controlled by court orders. Unless and until a Judge orders termination or suspension of alimony existing orders must be obeyed. This means that alimony must continue to be paid until a judge issues an order that changes the existing orders. Some separation agreements and divorce decrees have language that automatically terminates alimony upon cohabitation. Other agreements can't be modified by a Judge and alimony must continue to be paid despite the cohabitation. The rest of the orders of alimony must be presented to a judge in the form of a modification action in which the relief sought is termination of alimony. This allows the judge to hear facts to determine if cohabitation has occurred. In some cases, a judge may reduce alimony instead of terminating the payments.

This is a complicated area of law. Wrongful termination of alimony can result in a judgment of contempt against the payor. Before taking a unilateral action that violates a court order a family law attorney should be consulted. Such an attorney can review the existing orders and evidence of cohabitation and advise on the parties rights and obligations concerning future alimony.

Don't fall for this child support trap!

It is not unusual for custody arrangements to need adjustments to change as the children get older. Visitation schedules often change. Children's friends and activities need to be taken into account. Sometimes children move from one parent's home to the other and primary custody changes. The courts encourage cooperation between parents and generally support all custody and visitation changes that occur through agreements. Even if these changes occur without approval from a Probate Court Judge they seldom are the cause for a contempt action in court. It is almost unheard of a court actually finding a parent in contempt for not returning a child to a parent where there is an agreement for a change of schedule.

Changes in child custody can effect the amount of child support paid. The current Massachusetts Child Support Guidelines use as a factor the amount of time spent with each parent. As a result, when child custody changes, the amount of child support changes as well. Parents who can cooperate to change custody and visitation for the benefit of the child may also cooperate to adjust child support. Just as parents change custody without judicial approval, they may also change child support by agreement and without judicial approval. This results in a trap for the parent who reduces or stops paying child support.

In the case of Taylor v. Taylor, Mass.App.Ct. 13-P-997 (5/13/2014) the daughter moved from father's home to mother's. The parties agreed that the mother would stop paying child support due to this change in custody. The father even signed a written waiver of child support. Three years later the father filed a contempt for unpaid child support. The court found that despite the written waiver by the father, the mother still violated a court order and was in contempt of that court order. As a result, she had to pay the three years of child support with interest and penalties even though the daughter lived with her and she supported the daughter. The trap is that despite an agreement of the parties, the mother paid to support he daughter and then paid years of child support to the father.

While Massachusetts encourages agreements between the parties, it is necessary to seek approval of financial agreements by a judge. There is a simplified procedure for approval of such matters. Frequently, the court approves these agreements without the necessity of a court appearance.

If parties are contemplating an agreement to modify a child support order, they should consult an experienced family law attorney to avoid falling into the child support trap.

What rights do gay spouses have in custody battles?



For centuries, the law has struggled with issues surrounding rights of spouses in custody battles.  Of course, until recently, all of these battles have involved heterosexual couples. When a married woman gives birth, who is the father? What rights does a married man have to custody or visitation of young children? What rights does a husband have when children are conceived in a marriage through artificial insemination. All of these questions have been asked and answered for heterosexual couples. Now the same questions are being raised for same-gender couple who are getting divorced.

One of the first cases in Massachusetts to look at some of these issues for same-gender marriages has answered one of these questions. In the case of Della Carte v.Ramirez, question was raised of the rights of the non-biological parent in regards to a child born to the spouse through artificial insemination. The biological mother argued that her spouse had no rights to her child because she was not the father and had no biological connection and that the artificial insemination law, G.L.c. 46, § 4B provided no rights to the spouse because it used language about a child conceived with the “husband's” consent. In this case, the non-biological spouse was granted joint custody over the minor child. In doing so, the court made a ruling that the spouse was the legal parent of the child.

The result in this case established that for questions regarding paternity, custody, and visitation, there should be no difference between the law for heterosexual couples and the law for same-gender couples. In Massachusetts, marriage creates the same rights regardless of the gender make-up of the couple. Laws that use language that create rights for husbands should be interpreted to mean spouses. For Massachusetts, family court disputes should make no distinction based on the gender of the parties. Custody and paternity decisions should be based on concepts such as the best interests of the children without regard to the gender of the parents.

Paternity, custody and visitation in Massachusetts are complicated issues. An experienced family lawattorney can help parties understand the proper issues to raise in custody proceedings.   

Attorneys beware!! You could pay your opponent's attorney fees.

Every Massachusetts attorney, like attorneys across the country, have ethical duties when representing clients. Some of these duties protect the client and others protect our legal system. Lawyers, as officers of the courts, have duties to the legal system itself. One of these duties is that a lawyer shall not bring or prosecute a claim or defense that is frivolous. This duty is established in the Massachusetts Rules of Civil Procedure and in the Massachusetts Rules of Professional Conduct. A recent case shows the dangers of lawyers bringing frivolous claims.

In the case of Callahan v. Bedard, the parties were unmarried parents of a young daughter. Their relationship resulted in litigation in Probate and Family Court relating to support of the child. The parties reached an agreement in which a condominium was transferred to a trust with half of the value to benefit the daughter and half to benefit the mother. In consideration of this transaction, the father paid lower child support. The agreement was approved by a Probate Court Judge and incorporated into a judgment. About six months later, the father sought to vacate the settlement by claiming that Probate Court lacked jurisdiction to approve the agreement. His lawyer prosecuted the action to vacate in Probate Court and then in the Appeals Court.

The Appeals Court had no trouble rejecting the father's argument. In doing so, the Appeals Court found the father's appeal to be frivolous. As a result, they looked at the actions of the father's attorney. The Court found that the attorney should have appreciated the meritless quality of the father's arguments. The attorney and the father wasted the resources of both the mother and the Court. The Appeals Court imposed a remedy for such wasteful action on both the father and the attorney. The Court ordered that both the father and the lawyer (in fact his law firm) “shall be jointly and severally liable for the payment of the appellate attorney's fees of the mother and for the sum of double her appellate costs.”

Jointly and severally liable means that the mother can collect the money owed for attorney fees from either the father or his attorney. In fact, she can collect the entire amount from the attorney if she chooses and the law firm has sufficient resources. Furthermore, she may go back to Probate Court and ask the Judge to award her additional attorney fees for the frivolous action in Probate Court. After the opinion from the Appeals Court, it will be difficult for a Probate Court Judge to deny this motion.

This should be a warning to attorneys. Don't bring frivolous actions for clients. Don't waste the time and resources of the courts or your opponents.  Attorneys should always act in good faith.  

My spouse cheated on me, can I sue for damages?

For most people, marriage means that the two spouses will not have sexual relations with any person except their spouse. Unfortunately, sometimes this right of exclusive sexual access is violated. When this occurs, there is a desire on the part of the innocent spouse to seek revenge against the third party who had sex with their spouse. Massachusetts law used to allow lawsuits for the harm to the marriage caused by the third party. The Common Law which was derived from old English law allowed lawsuits for “alienation of affection” and “criminal conversation.”

The tort of criminal conversation allowed the wronged spouse to sue the paramour for violation of the right of exclusive sexual access from the marriage. In other words, it was a lawsuit against the third party for sex with their spouse. The tort of alienation of affection was a lawsuit against the paramour for causing their spouse to stop having affections within the marriage. This usually resulted in a divorce as a result of the adultery. It was not uncommon for a lawsuit to allege both alienation of affection and criminal conversation.

In Massachusetts, when cheating occurs in a marriage, the wronged party can no longer sue for damages. Massachusetts General Laws Chapter 207, Section 47B prohibits lawsuits for both alienation of affection and criminal conversation. As a result, when cheating occurs in a marriage, the only recourse through the courts is an action for divorce against the spouse.

Cheating in a marriage can be devastating to the innocent spouse. Some couples manage to save their marriage after an affair. Others separate and end the marriage by divorce. When cheating occurs in a marriage, both spouses should consult an experienced family law attorney to determine their rights and understand divorce. Many people need to understand their rights in a divorce before deciding if they want to save their marriage.

General Alimony Begins With a Divorce Judgment.

In September, 2011 the Massachusetts enacted into Law the Alimony Reform Act of 2011. This law changed completely the law of alimony in the state. It created presumptive maximum lengths of time for alimony to be received, guidelines to determine the amount of alimony, four categories of alimony and other changes. Attorneys generally advise that there are many areas of this new law that are difficult to interpret without appellate court decisions. We now have the benefit of the first case to interpret the new law.

In the case of Holmes v. Holmes, SJC-11538 (April 2, 2014) the court addressed the question of when does general alimony start for purposes of the presumptive maximum length of time. The question may be restated as does temporary alimony count towards the maximum length of time for receiving general alimony. The court's answer was that temporary alimony does not count towards general alimony.

In the Holmes case, the wife had received temporary alimony for over two years during the pendency of the divorce. Since the couple had been married for under twenty years, the court set a termination date for alimony payments. This date did not take into account the money paid as temporary alimony during the divorce. The court did state that if the recipient of alimony had delayed the divorce then the court should consider a portion of the pre-judgment period towards the presumptive maximum limit. However, the two years of temporary alimony in the Holmes case did not seem so long that the Judge should consider a different outcome.

The Alimony Reform Act of 2011 changed alimony from a law that favored women to a law that favored men. The recent decision of the Supreme Judicial Court is a small step swinging the law back towards women. Alimony in Massachusetts remains a complicated subject. Anybody getting divorced in Massachusetts with questions about alimony should consult an experienced divorce attorney to understand their rights.

If I was married in Massachusetts can I get divorced in Massachusetts?

Same gender couples who were lawfully married in Massachusetts and have since moved to other states may find that they can't get divorced in the state where they reside. Their state of residence may define marriage as consisting of one man and one woman. As a result, this definition of marriage means that the state of residence may not recognize the same gender marriage. If the marriage is not recognized, then the couple can't get divorced. It is only natural to ask if the couple can return to Massachusetts for one day, appear in court, and get divorced. Unfortunately, this can't happen.

Massachusetts has a residency requirement before a person or couple can file for divorce. The person who files for divorce must reside in Massachusetts for one year prior to the filing. For many couples this means that they have the right to get married as a same gender couple but not the right to get divorced.

If a same gender couple finds themselves in a state that won't grant them a divorce, they have four options:

1. Stay married.
2. One party moves to Massachusetts for one year and then files for divorce.
3. Both parties move to Massachusetts. If both parties are bona fide Massachusetts residents they can file a divorce before the one year has passed.
4. Contact the ACLU or other organization and ask for assistance to file a court action to declare the law of your state in violation of the United States Constitution and unenforceable. The result of this would be to change the law of your state causing the state to recognize lawful same gender marriages from other states. A number of lawsuits of this nature have been filed around the country and have resulted in changing the law of some states.

An experienced Massachusetts divorce attorney can explain the residency requirements of Massachusetts. If you find that you live in a state that doesn't recognize same gender marriages and you can't get divorce you may want to contact the ACLU to find an attorney who can discuss litigation as a method to obtain the right to get divorced.

In Massachusetts, search warrants are required to obtain Cell Phone Location Data.

If you watch police shows on tv you have seen episodes where the police go to their computer and pull up a suspect's cell phone's number and then access cell tower information and show the physical location of the suspect. This scenario is somewhat different from real life in that law enforcement needs a court order to obtain this information. However, under theFederal Stored Communications Act (SCA) 28 U.S.C. § 2701, it is very easy for law enforcement to obtain this information. If the police show a reasonable suspicion, then under the SCA, they can obtain a court order to obtain access to cell phone location information (CSLI). As of February 18, 2014, in Massachusetts, police need more than reasonable suspicion. They need probable cause. This is the same standard that police need to obtain a search warrant to search a person's home.

In the case of Commonwealthv. Augustine, 467 Mass. 230 (2014), police, investigating a murder, sought and obtained an order for production of CSLI under the Federal SCA to "possibly include or exclude" the defendant "as a suspect.” The Court ruled that police must obtain a search warrant based on probable cause to obtain CSLI.

CSLI data is collected and maintained by cell phone companies in their ordinary course of conducting business. As a third party, the police may request the company to produce the information and, if they comply, would not violate any defendant's rights. However, companies don't have to produce this information as the SCA provides that companies can require court orders before producing this information. When police seek a court order, then the government is compelling the company to provide this information. Under these circumstances, the government is intruding into the private lives and expectations of people and need a warrant based on probable cause.

The Massachusetts court recognized that cell phones have become "an indispensable part of modern [American] life. It is also clear that cell phones act as GPS devices and track the movements of the user of the phone as they travel. The court wrote that “there is no question that it tracks the location of a cellular telephone user.” Americans should not have to worry about the government, as Big Brother, tracking their every movement. As such, at least in Massachusetts, police need a search warrant if they want to use cell phone data to track the movements of a suspect.

Any person who is arrested for a crime and it appears that the police used CSLI to gather evidence should hire an experienced criminaldefense lawyer to defend them.

Use of text messages as evidence in Massachusetts

     A few years ago I had a conversation with a prosecutor about proving a case with text messages. I represented a victim of a crime in which the perpetrator had confirmed that he had punched my client in a text message. The prosecutor told me that it was extremely difficult to use a text message as evidence. He said that he would have to subpoena the company that provides the cell phone service to obtain the text message. Then the cell phone company would have to send a witness who can testify that the records show that the text message came from the perpetrator's phone. Then, after that, they still have to prove that the perpetrator actually sent the message and not someone else who used the phone.

     A recent case from the Massachusetts Appeals Court establishes that in many cases, it is much easier to introduce text messages than this prosecutor thought. In the case of Commonwealth v. Toney, Mass.App.Ct. (No. 13-P-275, Feb. 5, 2014) the Court held that a text message may be introduced based on the testimony of the recipient of the message and does not require a subpoena to the cell phone company. However, this opinion is an unpublished opinion of the Court and can't be used as precedent. Nevertheless, the logic used by the Court should guide judges and lawyers in the future.

     The introduction of a text message as evidence can be broken down into two elements: foundation and contents. The Toney case only dealt with the foundation element as the prosecutor never tried to introduce the text message itself. The victim in this case testified that "since we were friends, her phone number was in my phone," and that "I know that when I got a text message with the name 'Chantelle Toney,' . . . it was from Chantelle Toney." The court held that this testimony was sufficient to allow the jury to determine if the text message was sent by Chantelle Toney.

     This case treats text messages the same way that telephone calls are treated. A telephone call can be introduced into evidence if the person testifies to the circumstances of the telephone and the totality of the circumstances show the identity of the caller. Essentially, this is what the Court did in the Toney case. Based on the totality of the circumstances, the Judge held that the witness could identify the person that she believed sent the text.

     While the Toney case did not seek to introduce the contents of the text message, this is usually very easy to do. I usually take the cellphone, display the text message, place it on a copy machine, and copy the text. I then make sure the actual cell phone is available in Court and offer the copied text as evidence.

     Introduction of evidence can be a complicated concept. This is particularly true for new technology like text messages. An experienced trial attorney should be prepared to apply the rules of evidence to this new technology.

Judges have to be careful about social media.

I have written about the dangers of social media and people who are in court in my blog.  Just as people who litigate in court must be careful about the use of social media, so do judges and lawyers.  The American Bar Association cautioned judges about this problem and now a Judge in Florida has been disqualified from a divorce case because of social media.

In the Florida case, a judge presiding over a divorce sent a "friend request" to the wife in the divorce before rendering a judgment.  This put the wife in a very difficult position.  If she rejected the request would the Judge retaliate in the Judgment?  If she accepted the request would that consitute improper ex-parte communications with the judge?  Could the husband attack the judgment because of the new relationship?

Judges are suppose to be impartial so that they can make a decision free of improper influences.  Connecting with someone in a non-professional manner on social media should be grounds for removing the judge from a case.  Judges should not friend lawyers or litigants unless they have a prior relationship with that person such that there is already a conflict of interest preventing the judge from hearing the case.  Lawyers must avoid the appearance of impropriety and should not ask Judges to friend them.  If a lawyer does have a social media relationship with a judge, they should reveal this to the other side as soon as possible.

To the extent possible, it is not a bad idea for a litigant to look at the social media identities of the opposing lawyer and the judge assigned to the case.  If some contact is found that raises questions, an experienced lawyer should be consulted to ask about any possible concerns as a result.  

Arrests made for violating restraining orders by social media contacts

Recently there have been several cases in which people have been arrested for violating restraining orders by contacting the protected person by social media. I have written about this topic in the past on my blog. These cases are the first cases I have found in which someone was arrested for using social media and violating restraining orders.

In December, 2013, a man in Beverly, Massachusetts was arrested because he sent his girlfriend an invitation to join his circle on Google Plus. He claimed that he didn't send the invitation and that he has no idea how it was sent. With Google Plus, people create circles as a way of expanding their social network. When a person is added to a circle, Google may send an invitation to that person. This is the equivalent of “liking” a person on Facebook.

Thaddeus Matthews, a radio show host in Memphis, was arrested after he “liked” a video posted on Facebook by a woman who had a restraining order against him. When a person “likes” a posting on Facebook, the “like” is posted on the Facebook wall of all “friends” and the person who posted the original posting. Although a person may claim to not understand the workings of Facebook, a court is likely to not believe this. The result for Thaddeus Matthews is that he is likely to be convicted of a crime.

Restraining orders require the restrained person to have nothing to do with the protected person. In almost all cases, this means that the restrained person can't follow or spy on the protected person. This prohibition should include cyber stalking. Thaddeus Matthews should not have been looking at postings by his former girlfriend once the restraining order issued. As I recommended in my previous blog post on this topic, once a restraining order issues, the restrained person should “unfriend” the protected person.

Restraining orders can  be difficult to understand and obey.  A person served with a restraining order should consult an experienced attorney who understands domestic abuse orders.  If that person uses social media, they should ask the lawyer about how to use social media and not violate the restraining order.

Should a Stay-At-Home parent have a post-nuptial agreement?

A person who chooses to stay at home to raise children usually makes this decision after consultation with their spouse. The decision is made in furtherance of the partnership called a marriage. The stay-at-home parent assumes that the marriage will last until one of the parties dies and that they won't suffer financially as a result of leaving the work force. Unfortunately, many marriages are terminated by divorce and the stay-at-home parent finds themselves unable to maintain their standard of living after divorce.

When a stay-at-home parent returns to the work force after years of child raising they frequently find that they are considered unqualified for their former occupation. They may need to return to school to refresh their skills. When they do find work, they frequently start with entry positions instead of a job comparable to their peers who never left their occupations.

Prior to 2011, divorce judges frequently compensated such stay-at-home parents with alimony awards designed to maintain their standard of living. However, in 2012 Massachusetts enacted an alimony reform law that can result in loss of security for the stay-at-home parent. The alimony reform law contains, among other provisions,1) a limitation preventing the award of alimony if child support is paid and the combined income of the parties is less than $250,000.00; 2) time limits for the period of alimony when alimony is granted; and 3) a termination of alimony at retirement age. Given the changes due to the alimony reform law, it is wise to plan for the potential of a divorce.

An agreement between the spouses can provide security for the stay-at-home spouse despite the changes caused by the alimony reform law. If the parties create such an agreement before marriage, it is called a pre-nuptial agreement. Many couples don't anticipate such situation before marriage. There is an alternative: a post-nuptial agreement. A post-nuptial agreement is an agreement between the spouses that is like a pre-nuptial except that it is executed after marriage. Massachusetts has joined the growing number of states that allow post-nuptial agreements in some circumstances. An agreement between the spouses which results in one spouse leaving the work force to raise children should be valid as a post-nuptial agreement in Massachusetts.

A person who is contemplating leaving work to raise children should consult an experienced lawyer about a pre-nuptial or post-nuptial agreement to compensate them for the anticipation of not working as a result of their decision.

Source: “Dostay-at-home moms need a 'postnup'?” by Jeff Landers published at Today.com