Boston, MA Divorce and Law Blog

Working with a co-parent.

2012-03-03T13:19:00.001-08:00

In the Massachusetts Family and Probate Courts, the focus in divorce and related cases, is always on the best interests of the children. Children are viewed as incompetents who need protection from the State. In these cases, the State is represented by the Judge. Parties who come before the courts need to work to improve the lives of the children. An article by Donna Ferber, a therapist in Connecticut, discusses a common problem: dealing with an uncooperative co-parent. She discusses the problem and makes excellent suggestions on how to interact with the other parent for the best interests of the child. This article is worth reading.

As a divorce attorney, I measure the success of cases involving children by the actions of the children when they become adults. If a child is able to lead an independent, productive life with employment and healthy relationships, then the case was a success. In contrast, if the child has addictions, is unable to work, sabotages relationships, or can't live an independent life, then the case was a failure. The article by Ms. Ferber will help parents be successful in co-parenting.

Massachusetts New Alimony Law takes effect March 1, 2012

2012-02-26T14:43:00.000-08:00

On March 1, 2012, alimony reform becomes law in Massachusetts. The new law completely changes alimony from the one size fits all that was the law to a more flexible approach with formulas and four categories of alimony. While it will take the courts decades to interpret the new law, there are some known consequences.

Under the new law, fewer people will be receiving alimony. No alimony will be awarded if child support is ordered and the combined income of the parties is less than $250,000.00. This is a major change from previous law when alimony and child support were awarded together. Under the new law, most alimony awards will terminate by age 67. The old law did not have a termination date unless the parties agreed to a specific termination. Since the new law allows some people who are paying alimony under the old law to seek to terminate alimony based on the new law, it is expected that many payors of alimony will seek to terminate their payments.

The new alimony law imposes termination dates on most alimony awards. The law permits lifetime alimony for marriages that lasted more than 20 years. All other marriages have a formula for the length of alimony awards.

The new law has language about the amount of alimony to be awarded which is 30 to 35 % of the payor's income. While I think that this language imposes a maximum level of alimony, lawyers are discussing this as a presumptive amount. No matter which interpretation is used, it will serve to decrease litigation over alimony.

In my opinion, this law changes the law from biased in favor of women to a bias in favor of men. It is an improvement over the old law. However, just as the old law allowed men to overpay alimony, this law is likely to cause women to be under paid. I think that the new law will cause more women to live in poverty as they age out of the work force while their ex-husbands live in comfort. It is important that Massachusetts lawyers look to the potential of poverty as they represent their clients in divorces and they apply the new law.

Does Gay Marriage hurt society?

2012-02-19T09:05:00.000-08:00

During the last two weeks, the issue of gay marriage has received a lot a attention in the press. This is a result of the Ninth Circuit ruling that California's Proposition 8 was unconstitutional and the Governor of New Jersey vetoing a bill to legalize gay marriage in New Jersey.

I practice law in Massachusetts and this state was the first in the nation to legalize gay marriage in 2004. While I don't have the benefit of statistics, I believe that I can evaluate the impact of this decision.

The press no longer carries stories about gay marriage in the state. People appear to have accepted gay marriage and no longer discuss the subject. There were never any stories of any harm to anyone in the state. There were no reports of heterosexual marriages destroyed as a result. Basically, all of the fears of harm from gay marriage failed to occur. There appears to have been no negative impact.

Nevertheless, there are some people who were affected by this change in the law. The numerous gay men and women who were able to legally wed and have the same rights and benefits as others were affected. They now can inherit from their spouses. They can obtain employment benefits for their spouses. They are treated the same under state tax laws as other married couples. They have the opportunity to be happier as a result of the equality they can experience in this state.

While the rest of the country struggles with the issue, they should look at the impact of gay marriage in Massachusetts. It appears to me that gay marriage has benefited society and had no negative impact at all.

When can a residential landlord charge for utilities?

2012-02-04T14:09:00.000-08:00

Many landlords charge tenants for utilities or have them pay the utility companies directly. The penalties for improperly charging utilities to a tenant can be severe. A residential landlord can charge for utilities under certain conditions as follows:

Heat and electricity (electricity, gas, and oil). A landlord can charge these to the tenant or have the tenant pay them directly if there is a written letting agreement (commonly called a lease) in which the parties agree that the tenant will pay any or all of these charges. In addition, the utilities must be separately metered to the tenant.
Water and sewer. A landlord can charge these to the tenant but must take more steps. Like heat and electricity, there must be a written letting agreement. In addition, the landlord must install water conserving fixtures, must have a licensed plumber certify as to the installation of these fixtures and have the certification filed and accepted by the town or city Board of Health. In addition, the water and sewer must be separately metered so that the tenant is charged only for the water used. If the landlord fails to comply with all of these requirements, then the landlord must pay these charges.
Telephone, cable tv, and internet. These utilities are not necessary for a habitable home and the landlord has no obligation to provide these. If the tenant wants these utilities, then the tenant must pay for them.

Landlords should consult a lawyer to make sure that they are not violating the law.

Can grandparents get visitation rights?

2012-01-29T15:58:00.000-08:00

In Massachusetts, there is a law that on it's face creates the rights for grandparents to visit their children under a court order if the parents are divorced, one parent has died, or paternity is established by a court. This law, G.L. c. 119, § 39D, was interpreted by the Supreme Judicial Court in the case of Blixt v. Blixt, 437 Mass. 649 (2002). In this case, the Court recognized that parents have the constitutional right to raise their children without undo interference from the state. Applying this to grandparent rights, the court found that the statute can only be used to protect a significant prior existing relationship between the grandparent and the child and that intervention by the state is necessary to prevent harm to the children. Applying this to possible facts, basically, the grandparent must have had almost daily interaction with the child. It is best to consult an attorney before seeking grandparent visitation.

Financial Statements and Accuracy

2012-01-21T14:26:00.000-08:00

Every person who appears in a divorce or support proceeding that involves money or finances must fill out a financial statement. If your income is under $75,000.00 per year you should fill out the short form. If your income is $75,000.00 or greater, you should fill out the long form. Financial Statement Forms including schedules for self employment and rental income and instructions for filling out the forms may be found at http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/forms.html#financial.

I describe financial statements as the heart and soul of divorces. This is the most important document filed in the proceeding. This is the document that will determine child support, division of property, and alimony. Everything else, all exhibits and testimony are to convince the judge that the financial statement is accurate or inaccurate. If the statement is accurate, it means that the person was truthful and acting in good faith. If the statement is inaccurate, it could mean that the person made a mistake or it could mean the person committed perjury. Perjury is a crime and could result in criminal case and potentially jail time. A judge should consider the accuracy of the financial statement when making an award of attorney fees. A judge can choose to ignore a false financial statement and award child support, property division, and alimony on the needs of the other party. This can result in onerous judgments. If a person fails to present an honest and accurate financial statement, they permit the judge to make any order the judge wants.

Massachusetts alimony reform law – alimony formula

2012-01-16T19:23:00.000-08:00

I have heard many people talk about the new alimony reform law as containing a “formula” for alimony. In my opinion, this is not quite true. The new law contains a formula for the maximum amount of alimony a person can receive. The formula also has conditions that must be met before alimony can be awarded. This formula starts by calculating the length of time that is counted for the marriage. It then limits the income that can be considered for payment of alimony. Finally, it sets forth a math formula for calculating the maximum amount of alimony to be awarded. The law sets forth many factors and gives judges great discretion to grant or deny alimony.

The length of time counted as the marriage to determine alimony can include time before marriage if the couple cohabitation and combined their finances. A couple that lived together for ten years, got married and then separated after five years could have a fifteen year marriage for alimony purposes.

Income that can be considered for alimony does not include income that is used to calculate child support. Since the child support guidelines consider combined income up to $250,000.00, alimony won't be awarded in addition to child support unless the combined income exceeds $250,000.00. In addition, passive income from assets that are divided between the parties may also be excluded.

Once a Judge determines the length of the marriage and the income available for alimony calculations, the Judge must then consider the numerous factors listed in the statute. If the court finds that alimony is to be awarded, the law limits the amount of alimony to 30% to 35% of the difference between the two incomes.

This math formula causes many people to describe the new law as containing a formula for alimony. In my opinion, this ignores the requirement in the law for the court to consider many factors before granting alimony. In addition, there is another limit on the amount of alimony to be awarded. Alimony can only be granted if the recipient needs the money to maintain the standard of living of the marriage. This standard of living also acts as an upper limit on the amount of alimony granted.

Parental alienation can cause a change in custody.

2012-01-06T05:13:00.000-08:00

Some people are not satisfied to get divorced. They want to inflict pain on their ex-spouse. When the couple have children, the children afford an easy method of hurting the other parent. Some parents use the children as weapons for the sole purpose of causing emotional pain to the other parent. They interfere with visitation and attempt to alienate the children from the other parent. Not only is this harmful to the other parent, it is also harmful to the children. In a recent case of Barrington v. Barrington, the Court changed custody from mother to father due to parental alienation.

The focus should be on the best interests of the children. Parents should try to get along for the benefit of the children. Divorcelawyers should guide their clients to avoid this type of harmful behavior.

Communication with your ex-spouse. Use E-mail.

2012-01-02T14:14:00.000-08:00

If a couple have children, their relationship doesn't end when they get divorced. They will continue to interact for the rest of their combined lives. The worst way to communicate is in front of the children. Parents who communicate in person tend to do so when they exchange the children for visitation. The children are exposed to every argument and every angry word. Children pick up on these and are likely to have adverse reactions. Even if the children don't show a reaction, they are likely to suffer emotionally. If the parents communicate by telephone, children are likely to hear one side of the conversations. It is better to keep the communications entirely private from the children. E-mail does this.

E-mail offers many advantages to other forms of communication. E-mail is private. It allows a greater ability to think before responding. A person who is prone to spontaneous statements can reflect before writing a response. E-mail can be printed and produced in court. This provides a protection against a party who is unreasonable when negotiating but denies it in court. The ability to produce E-mails in court also provides a protection against swearing and threats. With E-mails, the parties can discuss the children without exposing the children to the conversations and still make the necessary arrangements.

If the parties improve their communications, they are likely to avoid problems that will cause them to return to court.

After divorce don't allow children to become master manipulators

2011-12-26T13:35:00.000-08:00

As a general rule, parents, after divorce, don't communicate well with each other. If they could communicate well, they probably wouldn't have gotten divorced. This lack of communication creates a vacuum. Just as nature, abhors a vacuum, so do children. Unless the parents act to avoid problems, children will fill the vacuum with manipulations.

A typical manipulation could occur around bed time. While the couple was together, the child's bed time was 8:30 P.M. One night, at Dad's house the child may ask “Why do I have to go to bed at 8:30 when Mom let's me stay up until 9?” Of course, Mom doesn't but Dad doesn't know that. Dad feels that he has to compete with Mom for the child's affections and says that the child can now go to bed at 9:00. The child then tries the same thing with Mom with similar success.

Of course, the answer is parents should communicate with each other and avoid competing for affections. A simple response to a child could be “I'll check with your mother and decide after we talk.” The child, knowing that the lie is about to exposed may simply fall back on “Never mind.” Of course, the best way to handle this is for parents to agree to check with each other on all such matters.

Another way of handling this is to explain to the child that there are two households with two sets of rules. So when the child explains that in Mom's house the child has a TV in the bedroom and can watch it until the child falls asleep, a good response is that there are two sets of rules. In Dad's house, there won't be a TV in the bedroom.

Security Deposit Law—Landlords Beware!

2011-12-11T16:53:00.000-08:00

Recently, Judge Young of the U.S. District Court for the District of Massachusetts, wrote an opinion interpreting the Massachusetts Security Deposit law, G.L. c. 186, § 15B. In the case of Hermida v. Archstone, (Civil Action No. 10-12083-WGY) the court addressed an issue under the portion of the law that states that a landlord cannot require a tenant to pay any money at the inception of a tenancy except (i) rent for the first full month of occupancy; (ii) rent for the last full month of occupancy calculated at the same rate as the first month; (iii) a security deposit equal to the first month's rent; and (iv) the purchase and installation cost for a key and lock. The landlord in this case collected an “amenity use fee.” An amenity use fee was for use of a pool, gym, and outdoor grill. The landlord claimed the fee was optional and the tenant claimed that they were never told that the fee was not required. The court found that the landlord violated the statute by imposing this fee.

The court found that the amenity use fee did not fit within any of the categories of fees allowed by this statute. As such, the landlord violated the statute. Although the court opinion did not address damages, the statute does. Violation of the statute mandates treble damages and attorney fees. The award of attorney fees can far exceed the treble damages imposed. A wise landlord will make certain that there is no violation of the statute.

The landlord in this case could have collected this fee and not violate the statute. The landlord could have advertised that as a tenant, the tenant could join the “club” which allowed use of the amenities. The landlord should have made it clear that the club was optional. When the tenant moved into the property, the landlord could have given him an application to join the club and an explanation of the fee. The tenant would then have a choice and, if he choice to join, would have paid the fee after he moved into the property. As long as the fee is collected after the tenant moves in and is optional, it shouldn't be a violation.

I have long argued that many landlords violate this statute in the way they rent apartments. In Boston and other areas, it is very difficult to locate a rental unit unless a person uses a realtor. Realtors typically collect their fee when the tenant rents a unit. Their fee is protected by a listing agreement with the landlord which requires the tenant to pay this fee as a condition of renting the unit. In my opinion, this violates the security deposit fee just as the amenities fee paid by Hermida violated the law. It is not a violation for a tenant to pay a fee to a realtor for the right to look at the realtor's listings. It is only a violation when the landlord requires the tenant to pay the fee. If the landlord has to pay the fee, the landord should amortize the cost of the fee over a twelve month period and raise the rent.

Can a landlord start charging for water and sewer?

2011-11-06T17:36:00.000-08:00

In order for the landlord to charge for water and sewer, there are a number of specific steps that have to be taken. There has to be water conserving fixtures installed and the water has to be separately metered. A plumber has to certify as to the installation of water conserving fixtures. A document has to filed and approved by the board of heath concerning the water conservation fixtures. These steps have to be taken before the issue of changing the lease can be reached. If a landlord has not complied with these steps a tenant should be able to call the Board of Health who should notify the landlord that he can't charge for water and sewer charges.

Halloween Laws

2011-10-29T11:59:00.000-07:00

Every now and then, it is fun to look at ordinary events in our lives and examine how law interacts with the event. Halloween is one of those events. Massachusetts doesn't have any specific laws for Halloween. However, there are a number of laws that arguably relate to Halloween concepts.

Massachusetts has a Dead man's act. Mass.Gen.L. c. 233, § 65. This isn't as scary as it may sound. This law relates to use of statements of a dead person in a court proceeding. It is part of a rule of evidence known as the hearsay rule.

There are a number of dead body laws. If a person removes or disinters a dead body they can be punished by up to three years in the state prison. Mass.Gen.L. c. 272, § 71. It is illegal to sell a dead body or body parts and is punishable by up to two a half years in jail. Mass.Gen.L. c. 272, § 72. Sheriffs and constables are prohibited from seizing a dead body to collect a debt. If they do, they can be punished by six months in jail. Mass.Gen.L. c. 272, § 70. (How does a sheriff collect a debt by seizing a dead body?)

In California witches need to be licensed. In re Zsuzsanna Bartha 63 Cal.App.3d 584, 134 Cal.Rptr 39, 91 A.L.R.3^rd 759 (l976). Massachusetts, home of Salem witchcraft, does not license witches. Our history involving witches resulted in a change in rules of evidence. During the witchcraft trials in the early 1690s, spectoral evidence was allowed in courts. Spectoral evidence was a person testifying that they saw a ghost or other supernatural creature or event. Nineteen people were executed based on such evidence. Massachusetts prohibited the use of spectoral evidence around the middle 1690s and hasn't convicted a witch since.

In 1991, a New York Court found facts to determine that a house was haunted. Stambovsky v. Ackley, 169 A.D.2d 254 (NY App. Div. 1991). The court reached this conclusion based in part on evidence that was spectoral in nature.

In the United States, you can't sue the Devil. Someone actually tried that. In U. S. ex rel. Mayo v. Satan and his Staff, 54 F.R.D. 282 (W.D. Pa. 1971) the court dismissed a lawsuit against Satan because as the principality of his own kingdom, he is beyond the jurisdiction of the courts.

It appears that necrophilia is not a crime in Massachusetts. In the case of Commonwealth v. Costa, 360 Mass. 177 (1971), it appears that there sufficient facts to prosecute for necrophilia but the Commonwealth didn't prosecute for that. While necrophilia may not be a crime, rememeber, you can't move the body. It appears that necrophilia doesn't constitute adultry either. Good thing we have no fault divorce for anybody who discovers that their spouse engages in necrophilia.

It wouldn't be Halloween without trick or treating. If tricks involve damage to property, that constitutes the crime of vandalism. Mass.Gen.L. c. 266, §§ 94-107. If the trick involves a john then the “trick” is prostitution and is illegal. Mass.Gen.L. c. 272, §§ 53, 53A.

For many people, Halloween means parties. Parties, at any time of year, have the potential for legal problems. It is a crime to serve alcohol to minors. Mass.Gen.L. c. 138, § 34. If a person drinks too much at a party and then drives and has an accident, the host of the party can be sued for the resulting injuries. This is known as social host liability and exists in Massachusetts. Most towns have ordinances that prohibit parties from making too much noise late at night. Usually police give a warning when they first arrive at the home where a noisy party exits. However, they may have the power to arrest for the offense of making noise late at night.

Halloween celebrating can result in some people drinking and driving. Massachusetts prohibits operating a motor vehicle under the influence of alcohol. Mass.Gen.L. c. 90, § 24.

Halloween should be a time for fun. Have a happy Halloween and make sure you don't move any dead bodies, do any illegal tricks, or party too hard. If you do any of these things, you may have to hire a lawyer which could be scarier than any costumed person who shows up at your door.

Bribe your ex-spouse.

2011-10-16T11:37:00.000-07:00

After divorce, parties frequently feel the need to change the terms of the separation agreement or divorce judgment. The easiest way to change the divorce terms is to enter into an agreement with your ex-spouse. Unfortunately, the ex may not agree even though you are asking for changes that are logical and reasonable. It appears that your only option is to hire a lawyer and file a modification action. This is a long and expensive process. There is another option. Bribe your ex-spouse.

In many cases, the other spouse may cooperate if they receive money or other consideration for the agreement. An example of this is moving the child out of state. If the ex-spouse refuses to give permission to take the child, consider offering other considerations. I suggest that the child support payments be lowered to compensate for the added cost of traveling out of state to visit. In addition, the visitation schedule should be changed to give the other parent longer visits. Perhaps giving the other parent Christmas vacation every year would obtain their cooperation. In addition, the parties could agree on regular “Skype” visits over the internet. Offers of this nature may result in cooperation to move out of state and improve the relationship between the two parents.

After you and your ex-spouse have agreed, you can file a simplified form to have the court approve your agreement.

The 4 “A”s that cause divorce.

2011-10-11T18:55:00.000-07:00

There can be many reasons for couples to get divorced. However, four behaviors stand out as causing divorce: Abuse, Addiction, Adultery, and Abstention.
Physical abuse constitutes the crime of assault and battery. This behavior can be highly destructive. While many people stay in an abusive relationship for a period of time, most people who are victims of abuse separate and get divorced.

Addiction to drugs or alcohol can be extremely destructive. Addiction can lead to abuse, loss of job, wasting of money, and other harmful conduct. Frequently, addicts resist attempts to help them fight the addiction.

The concept of marriage incorporates a pledge of exclusive sexual access for the spouses. Adultery represents a violation of this pledge and many people view this as so important that any act of adultery will cause a divorce. Since few people commit adultery in sight of their spouse, the appearance of adultery can be as harmful as adultery itself. If people want to protect their marriage, they should avoid behavior that causes their spouse to think that adultery is occurring

Abstention is the absence of sexual relations. For most couples, sex is important to maintain intimacy and harmony. If they stop having regular sexual relations, it can be destructive to the relationship. Frequently, abstention will result in one party seeking sex outside the marriage. Couples should have regular sex to make the marriage last.

The Alimony Reform Act of 2011

2011-10-02T17:52:00.000-07:00

The alimony reform act of 2011 was signed into law last week. This law reforms the law of alimony with the stated purpose of eliminating life long alimony. The law changes alimony in many other ways such as creating new types of alimony, allowing new factors to be considered in creating alimony, and implementing some formulas for calculating alimony. The law becomes effective on March 1, 2012 but will start effecting divorces immediately. Most lawyers who represent potential payors of alimony won't discuss alimony in agreements unless it is based on the new law. Furthermore, the new law allows some alimony agreements to be modified after the effective date so failing to consider the new law could be a disservice to the client.

Who should have a premarital agreement?

2011-09-25T17:42:00.000-07:00

The simple answer is anybody who comes to the marriage with something to protect when the marriage terminates. The general categories are people with children from a prior relationship, significant family assets, or people who own a business which comprises a major source of income.

If there are children from a prior relationship, they may not inherit when their parent dies without a premarital agreement. The laws of inheritance give preference to a surviving spouse. Even if a will exists, the law still gives preference to a spouse. The best way to make sure that children can inherit is to write a prenuptial agreement. When one spouse owns a business or a portion of the business in which they receive significant income, it may be desirable to make certain that the new spouse can't receive a portion of the business in a divorce. It can be devastating to the business to have a person own a business when they are not qualified to run the business. It can also be very difficult for one spouse to suddenly work for an ex-spouse.

Premarital agreements can successfully protect against these problems and others.

What is a pre-nuptial agreement?

2011-09-18T18:28:00.000-07:00

A pre-nuptial agreement is an agreement between a couple who intend to get married which determines financial obligations upon termination of the marriage. All marriages terminate either by divorce or by death. A pre-nuptial agreement should determine rights and obligations for both methods of termination. A pre-nuptial agreement must be fair at the time of creation and fair at the time of enforcement. Fairness at the time of creation means that both parties must make a full and fair disclosure of their income, assets, expenses, and liabilities. Fairness at the time of enforcement requires a fair distribution of income and assets at the time of termination. This doesn't mean an equal distribution but one party can't be left destitute. As parties can't contract away children's rights, a pre-nuptial agreement can't determine child custody or support issues.

Tenants rights after foreclosure

2011-08-17T16:34:00.000-07:00

In the recent case of Bank of New York v. Bailey, ___ Mass. ___, (SJC-10801, August 4, 2011) the court ruled that a tenant has the right to challenge the title of a owner who obtained their title to the property from a foreclosure.

While this is considered by some as a landmark ruling, it shouldn't be a suprise to lawyers who arefamiliar with landlord tenant law. In order to evict a tenant, the plaintiff must claim that they have a superior title to the tenant. In order to have a superior title, the plaintiff must have a valid ownership interest. In the Bailey case, the plaintiff claimed that a foreclosure deed, on its face, established their superior title and that the tenant couldn't contest this. If a deed by itself is sufficient to establish title, what stops a person from forging a deed and then trying to extort money from a tenant by starting an eviction case? I believe that it is unconstitutional to evict a person without allowing them the opportunity to challenge a forged deed. Yet the Bank of New York argued that their foreclosure deed was above challenge. The court decision does not go into great detail on BNY's arguments. However, it it possible that BNY argued that tenants generally can't contest the landlord's claim of title. This is correct but with different facts. If a person, claiming to own the property, gives a tenant keys and allows them to enter the property, the tenant can't claim that person is not the owner of the property. This doctrine of title by estoppel is based on the concept that a tenant who takes advantage of a claim of title by taking possession can't then challenge the very same claim of title. In the Bailey case, the tenant did not take possession of the property from BNY. They took title from someone else and BNY claimed that they took the title away by a foreclosure. There is no estoppel in this situation. The argument by BNY ignores another concept in eviction law. A summary process action (eviction) is an action to take away a property interest. This is called a forfeiture action. Forfeiture actions are abhorred by the law and require strict compliance with all formalities. This strict compliance with all formalities is also present in foreclosure actions for the same reason. The only way a court can discover if a foreclosure strictly complied with all formalities is by holding a trial.

The decision of the Supreme Judicial Court complied with existing law.

Contempts and the right to counsel

2011-06-28T19:06:00.000-07:00

In the case of Turner v. Rogers, U.S Sup.Ct. No 10-10 June 30, 2011, the Supreme Court addressed the question of is a court appointed attorney required in civil contempt proceedings for the collection of childsupport. The simple answer is sometimes yes and sometimes no. Probably, most of the time, court appointed counsel will not be required. It is my opinion that under present Massachusetts practice, court appointed counsel must be appointed. If Massachusetts makes some minor changes, counsel won't be required in the majority of cases.

The decision of the court makes it clear that incarceration as a result of a contempt finding is just as harmful as incarceration in a criminal case. Before jail can be imposed for non-payment of child support, the court must either appoint an attorney to represent the defendant or provide “substitute procedural safeguards.” Substitute procedural safeguards include (1) notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information from him; (3) an opportunity at the hearing for him to respond to statements and questions about his financial status; and (4) an express finding by the court that the defendant has the ability to pay. Massachusetts practice includes the last three of these safeguards. What is lacking is the notice to the defendant that his ability to pay is a critical issue.

Notice of a complaint for contempt is provided by service of a summons and a complaint. The current form of a summons does not have any language that provides notice that ability to pay is a critical issue. As long as Massachusetts lacks this essential notice, it appears that Massachusetts will have to appoint attorneys to represent defendants in criminal cases. It should be a simple and inexpensive remedy for the state to revise the form of summons and include the language that is now constitutionally required. Until this is done, the language can be added to complaints or court appointed attorneys must be provided.

While the Supreme Court decision does not go further, I think that the decision requires more than notice and filling out a financial statement. It appears to require that the Defendant have the ability to understand the issue of ability to pay and to present testimony on this issue to the court. If the defendant lacks this ability, then the court needs to appoint counsel.

Assents in Probate

2011-06-23T18:45:00.000-07:00

Recently, I was asked to explain an assent form for the administration of an estate of a deceased person.. In the probate process, there are a number of actions of the Executor that require approval by the Judge. Our probate system generally works on the assumption that the parties to the estate have the most knowledge. If the parties (heirs) want to object to the actions of the executor, then the court will look at the actions with more care. Otherwise, the court can assume that everything is proper. So when a judge's approval is requested, the heirs and other parties are given notice of the issue and given an opportunity to approve or object. If all parties approve, it can expedite the process and decrease the cost. If a person objects, it may create an issue for the court to investigate and hold hearings to resolve. The third choice is to do nothing and let the court decide what action to take without guidance from the parties.

If a party is requested to sign an assent, there are documents that will be submitted to the court which explain the proposed action. The first opportunity to assent is to approve the will and appoint the executor. The subsequent assents could be all sorts of things. Nobody should sign an assent unless they have copies of the documents relating to the issue and understand the contents. The assent will identify the document that is submitted to the judge. An assent says to the court that you approve the proposed action of the executor. It also says to the court that you don't need further notice of the proposed action.

The following is an example of how this works. When the probate is filed, the petitioner files a copy of the will with a petition to probate, a death certificate, and a bond. If you sign the assent, you probably won't get further notice of the petition to probate. If you don't sign the assent, you will be "served" (probably by mail but possibly by a sheriff) with a court document called an order of notice that tells you the petition and will were filed and that you are an interested party and have the right to object to the petition. It will also tell you the date by which you must file your objection. If you don't file the objection by that date, you will not have the right to contest the will or appointment.

Alimony Reform Act Part 2 - Types of Alimony

2011-03-26T14:05:00.000-07:00

In Massachusetts, a judge can order alimony in a divorce or not. An award of alimony will last until there is a change of circumstances. The only way alimony can terminate based on a period of time is if the parties agree. Without such an agreement, alimony lasts until a party dies, the recipient remarries, or a change of circumstances exists.
The proposed Alimony Reform Act will allow different types of alimony. The bill will allow General Term Alimony, Rehabilitative Alimony, Reimbursement Alimony, and Transitional Alimony.
General Term Alimony is the equivalent of alimony under current law. However, under the new law, the court will limit alimony to a period of time unless the court makes findings that alimony should exceed the time limits. The time limits start at 50% of the length of the marriage for marriages under five years and can be indefinite for marriages over 20 years.
Rehabilitative Alimony provides support while a spouse acquires skills to become self-supporting. This will allow support while a spouse gets an education or job training.
Reimbursement Alimony is not based on need but provides compensation for support or other contribution to the family. It is not unusual for one spouse to sacrifice their education and work while the other spouse gets an education.
Transitional Alimony provides support while a spouse "transitions" to a new location or an adjusted lifestyle. Usually, this would be a one time payment. Under current law, a court can order payments of this nature but it would be part of a property division order and not alimony. Allowing payments of this nature as alimony will give Judges more flexibility in making judgments.
The proposed law, with different types of alimony, will provide more flexibility and more fairness in divorce decrees.

Alimony Reform Act of 2011 Part 1

2011-03-20T10:04:00.000-07:00

There is a bill pending in the Massachusetts legislature that, if passed, will make major changes in the law of alimony in Massachusetts. The bill is called the Alimony Reform Act of 2011 and will probably be passed and become law. I will discuss the proposed changes in this blog. I will post a number of articles as there are too many changes to discuss in one posting. The first topic will be the factors a court will consider when deciding an alimony issue.
Alimony is sometimes awarded when couples get divorced in Massachusetts. It is controlled by G.L. c. 208, § 34. The new bill, if passed, will be a complete overhaul of the law of alimony in the state.
I have created a chart which compares the alimony factors under present law and the proposed law which is included at the end of this article. The new law includes all of the factors that a judge must consider and may consider under current law and adds additional factors. However, the biggest change is a catch all concept that allows the judge to consider any additional factors as the court may deem relevant and material. There have been many decisions where judges have lamented the current limitations that restrict the factors to the those stated in G.L. c. 208, § 34. Under the new law, the Judges won’t have this limitation. This should result in fairer and more equitable results.
While the current factors are preserved, there is additional language that places an emphasis on certain behavior. Abuse that causes physical or mental harm that interferes with a party’s ability to earn income is specifically mentioned in the new law. It appears that health issues that effect one’s ability to earn money are emphasized in the new law as additional language is added to the health factor.
Under current law, alimony may be ordered by a Judge or not ordered. A Judge has no ability to limit an alimony award to a period of time. The proposed law will allow a Judge to impose time limitations. Thus a new factor will be considered: the appropriate period of time for alimony. This new concept in Massachusetts should create more just and fair alimony awards in divorces.

　

Current Law G.L. c. 208, § 34.	Proposed Law Alimony Reform Act of 2011
length of the marriage	length of the marriage
conduct of the parties during the marriage	conduct of the parties during the marriage including a party’s inability to provide for his or her own support by reason of physical or mental abuse by the payor
age	age
health	health including advanced age; chronic illness; or unusual health circumstances of either party
station	station and marital lifestyle
	ability of each party to maintain the marital lifestyle
occupation	occupation and if a party is unemployed or underemployed
amount and sources of income and employability	both parties’ income, employment and employability, including employability through reasonable diligence and additional training
vocational skills	vocational skills
estate	estate
liabilities	liabilities
needs of the each of the parties	needs of the each of the parties
opportunity of each for future acquisition of capital assets and income	opportunity of each for future acquisition of capital assets and income

	amount and duration of alimony
	ability to pay alimony
	economic or noneconomic contribution to the financial resources of the payor spouse and to the marriage
	Significant premarital cohabitation that included economic partnership and/or marital separation of significant duration
	lost economic opportunity as a result of the marriage and a party’s inability to provide for his or her own support by reason of a party’s deficiency’s of property, maintenance or employment opportunity
	such other factors as the court may deem relevant and material
	Tax considerations applicable to the parties
	Whether the payor spouse is providing health insurance and the cost of heath insurance for the recipient spouse
	Whether the payor spouse has been ordered to secure life insurance for the benefit of the recipient spouse and the cost of such insurance
	Sources and amounts of unearned income, including capital gains, interest and dividends, annuity and investment income from assets that were not allocated in the parties divorce

Tenants win interpretation of security deposit law

2011-02-08T18:24:00.000-08:00

The Massachusetts security deposit law imposes severe obligations on landlords. Tenants have argued a strict interpretation of the law and landlords have argued for good faith compliance. In the case of Lopes v. Williams,Mass.App.Div. (Nov 15, 2010) the court sided with tenants in this argument. In this case, the landlord failed to place the security deposit in an escrow account. This failure required the landlord to return the security deposit to the tenant within thirty days of receiving the security deposit. An argument advanced in the past was that the tenant had to request the return of the security deposit. This case makes it clear. The landlord either holds the money properly in an escrow account or must return the security deposit to the tenant in thirty days even if the tenant does not request a return of the money. Failure to do so will cause the landlord to pay three months rent and attorney fees to the tenant. This case also dismissed the good faith argument. It is clear that landlord’s intentions or understanding of the law is not relevant to the landlord’s obligations and liabilities. The landlord must strictly follow the requirements of the security deposit law.

I think that this law is so difficult for landlords that unless they are professional landlords, they shouldn’t take a security deposit. They shouldn’t run the risk of paying three months rent and attorney fees.

Is the Ibanez decision a landmark case?

2011-01-26T19:09:00.000-08:00

The Massachusetts Supreme Judicial Court recently issued a decision in the case of U.S. BANK NATIONAL ASSO. v. IBANEZ, (Mass. 172011) (Jan 7, 2011) in which the court held that two foreclosures in Massachusetts were void. Some commentators have treated this decision as a landmark decision in real estate that will shake up the mortgage industry. I think that this case is a reaffirmation of traditional concepts in real estate law. It may help some homeowners understand their rights, Some people who have lost their homes to foreclosure may even get their homes back. It should cause mortgage companies to be more careful in their attention to the paperwork and detail of mortgages and foreclosure.
Massachusetts law of mortgages and foreclosure was created in a day before computers when banks treated mortgages one at a time. Usually, banks loaned money and held the mortgage until it was paid off. Today, banks loan money for mortgages and sell them to other investors before the ink dries on the promissory note. Mortgages are bundled together and sold to investors in large groupings of mortgages. Paperwork has changed from selling a single transaction to selling thousands of loans at a time by transferring them to a trust or other entity. This process, called v securitization, may have to change in light of the Ibanez decision.
In Ibanez, two properties were foreclosed upon and then the banks that bought the properties brought actions in land court to declare that they held good title to the properties. To the suprise of the banks, the court held that they did not have good title. The foreclosures were void.
Massachusetts has always held that any legal action that causes a forfeiture must strictly comply with the procedures required. Failure to comply with the formalities will result in failure to cause the forfeiture. This applies to foreclosures, evictions, or any other action that the law considers a forfeiture. The Ibanez decision was based on this concept that the mortgage companies failed to strictly comply with the formalities of foreclosures.
In Ibanez, the mortgages were sold many times before the foreclosure. The documentation of the transfers or assignments was not properly filled out until after the foreclosure process was started. Since a foreclosure can only be conducted by the party who holds the mortgage, the failure to properly assign the mortgage makes any subsequent foreclosure void. This doesn’t mean that assignments must be recorded at the registry to be valid. It does mean that the banking industry must take care to check the paperwork before foreclosing.
What does this case mean for future foreclosures? Actually, it makes very little difference. Banks and bank attorneys will have to do more work to prepare for foreclosures. If the paperwork isn’t correct, they need to correct it before a foreclosure is conducted. This may slow down the process a little. It should not be a significant difference. Homeowners may consult hire attorneys about stopping or reversing foreclosures. Since most people face foreclosure because they can’t make the payments, this won’t change the result. This case doesn’t put money in the pockets of homeowners. It merely forces banks to pay more attention to detail. A homeowner can hire a lawyer to fight a foreclosure but if the homeowner can’t find the money to bring the mortgage current, foreclosure will still occur. Eventually, the bank will own the property.
The Ibanez case is important but it is not earth shattering. Massachusetts law didn’t change. Instead, mortgage companies will change their practices a little.

What does it take for a party to get 90% of the assets in a divorce?

2011-01-15T14:07:00.000-08:00

Property division in a divorce is controlled by G.L. c. 208, §34 which lists the factors for a judge to consider when making a decision about property division. Usually, the judge makes a division somewhere between a 50-50 split and a 60-40 split. Sometimes, the judge may make a more lopsided division of 65-35 or even 70-30. It is almost unheard of for a judge to divide the assets by an 80-20 split. In the recent case of Wolcott v. Wolcott, 11-005-11 (Appeals Court) January 6, 2011, the court did the unthinkable and awarded the husband 90% of the assets. This lopsided division was based on highly unusual circumstances.
In this case, the wife tried to hire someone to kill the husband and may even have tried to kill him herself. She was convicted of attempting to hire a hitman and served three months in jail. The appeals court found that "conviction of a spouse of the crime of soliciting the murder of the other spouse" was "exceptional" conduct that shocked the conscience of the court and would "have an impact on the ‘conduct’ factor under [§ 34] irrespective of ‘economic impact.’" However, the attempt to murder the spouse alone, would not have justified such a lopsided result. In addition to the wrongful conduct, the court looked at the economic effect from the wrongful conduct. The court found that the wife’s conduct forced the husband to "take on total responsibility for the children’s care"; "makes [the husband] totally responsible for maintaining the parties’ home"; and will "always" adversely affect the husband as it "diminishes his ability to be totally focused on life and work issues." The wrongful conduct and the economic consequences justified an award to the husband of 90% of the marital assets.
The lesson learned from this case is that it is cheaper to divorce a spouse than to try to kill the spouse. As always, compliance with the law is better than violation of the law.

How does the father protect his parental rights when he is not married to the mother?

2011-01-12T11:40:00.000-08:00

Men are suppose to have equal rights with women in Massachusetts. However, a recent case explains that when it comes to children from parents who are not married to each other, men don’t have equal rights unless they take certain steps to protect those rights. Ideally, men and women have equal rights under the law. However, science does not afford the same level of equality. When a child is born, there is no question of the identity of the mother of the child. Therefore, the law recognizes the mother and her parental rights immediately upon birth. Biology does not make identification of the father so easy. A man may be present at birth, have his name on his birth certificate, and support the child. However, these actions are not sufficient to instill the man with parental rights. An alleged father of a nonmarital child may become a legal parent in one of two ways only: through an adjudication by a judge, or by filing a voluntary acknowledgment of paternity executed by both parents. The man’s name on the birth certificate is not sufficient.
The recent case of SMITH v. McDONALD, SJC-10670 (Mass. 12-14-2010) explained that prior to a legal determination of paternity, the child's mother is vested with sole physical and legal custody, and that custody arrangement continues even after paternity is established until modified by a court. So if no court action has been filed, the mother has sole custody of the child even if the parties have executed a voluntary acknowledgement of paternity.
A man who wants to protect his parental rights must have a judge determine that he is the father and grant him joint legal or joint legal and physical custody. Even if the parties are living together, when a child is born of a non marital relationship, the parties should execute a voluntary acknowledgment of paternity and go to Probate Court and have the court grant joint custody to the father and mother. This will protect the child’s rights as well as the father’s rights.

Massachusetts has a new homestead law.

2011-01-03T19:11:00.000-08:00

Massachusetts has changed the homestead law effective in March 2011. These changes will benefit every person in Massachusetts that owns a home. A homestead is a statutory exemption protecting a principal residence against the rights of creditors. This means that a homeowner who owes money for a debt has some protection against losing his home to the creditor. The new homestead law provides an automatic homestead in the amount of $125,000.00 and three other types of optional homesteads that provide protection of $500,000.00. I recommend that every homeowner should take advantage of the homestead law and file a declaration of homestead to take advantage of the full $500,000.00 protection.
A homestead does not prevent a creditor from attaching a home. As an example of the way this law works, take the example of Homeowner A who causes an auto accident and gets sued for $1,000.000.00. The damages sought exceed the amount of A’s auto insurance so the victim of the accident obtains an attachment of A’s home. If there was no homestead, the victim could force a sale of A’s home to get the equity in the house. However, with the homestead, the victim could still force a sale of the house but the first $500,000.00 in equity ($125,000.00 if it’s the automatic homestead only) goes to A and not the victim. This means that the victim won’t force a sale of the house unless A has more than $500,000.00 in equity.
There are many improvements in the new law that will benefit homeowners. The new law extends the homestead protection to spouses and other family members. The law also protects against prior debts that are not yet secured by the house. Of course, it doesn’t protect against voluntary liens on the real estate such as mortgages.
I recommend that every person in Massachusetts who lives in a house that they own declare a homestead.

Bullying in a divorce

2010-12-26T19:53:00.000-08:00

There has been much discussion in Massachusetts lately about bullying in schools. However, bullying is not limited to that arena. Bullying occurs everywhere in society including marriages and divorce. However, in a divorce, bullying can be particularly harmful. In a divorce, bullying can effect the outcome and this can have ramifications for the rest of a persons life. In fact, frequently, bullying is conducted for the purpose of effecting the outcome of the divorce.
It is not unusual for one party in a marriage to be overbearing to their spouse. When the parties get divorced, it is typical for the overbearing conduct gets worse. This conduct can vary from merely being rude to being highly destructive to spouse and children. Bullying should be recognized as a form of abuse. It is a course of conduct that is designed to control the spouse. Bullying should never be tolerated in a divorce.
Unless this conduct is addressed, you can expect that it will continue and get worse. If there are children, it is possible that this conduct will last for the joint lives of the parties. While they may be getting divorced, they will still have to deal with each other because of the children..
How do you deal with bullying. The first step is to recognize conduct as bullying. Then take the person to an authority that can punish the conduct.
Bullying involves repeated acts attempting to create or enforce a person's power over another creating an imbalance of power. Bullying consists of three basic types of abuse – emotional, verbal and physical. Wikipedia. Massachusetts defines bullying in schools as: "the repeated use by one or more students of a written, verbal or electronic expression or a physical act or gesture or any combination thereof, directed at a victim that: (i) causes physical or emotional harm to the victim or damage to the victim's property; (ii) places the victim in reasonable fear of harm to himself or of damage to his property; (iii) creates a hostile environment at school for the victim; (iv) infringes on the rights of the victim at school; or (v) materially and substantially disrupts the education process or the orderly operation of a school. For the purposes of this section, bullying shall include cyber-bullying." G.L.c. 71, § 37O. These definitions apply to divorces as well.
Bullying needs to be brought to the attention of the court. Only the court can punish this conduct. If the behavior involves physical conduct or a threat of physical abuse, then a domestic abuse restraining order can be obtained under G.L. c. 209A. Other conduct can be addressed by the court’s powers in a divorce or paternity action. It is not unusual for orders of the court to address this behavior without knowing that bullying is occurring. Usual orders include no conduct that denigrates a party and that the parties have to treat each other with respect. Get an order to prevent the specific conduct and then bring a contempt to address the wrongful behavior.
Abuse should never be tolerated.

Recognition of international custody decisions

2010-12-22T17:24:00.000-08:00

In the recent case of CHARARA v. YATIM, 09-P-1189 (Mass.App.Ct. 11-23-2010) the Court refused to recognize a custody determination from a Lebanese Court. A little background helps understand this case.
Prior to the enactment of the Parental Kidnapping Prevention Act in the late 1970's, custody disputes frequently resulted in battles across state lines. Since child custody judgments are considered subject to change based on a change of circumstances, states traditionally considered child custody cases even if another state had rendered a decision. This resulted in parties grabbing the children, running across state lines, and filing a new action. This was unique in American law as the Constitution requires states to give full faith and credit to final judgments of other states. A custody decision which appeared to be a final statement was not treated that way. Congress passed the Parental Kidnapping Prevention Act and required all states to treat custody decisions of other states as final judgments. The law also created a concept of home state to prevent parties from transporting children across state lines to find a favorable court. The concept of home state requires that child custody disputes be litigated in the state where a child has resided for the six months prior to the filing of the action.
Following the enactment of the Federal Parental Kidnapping Prevention Act, a uniform set of laws was proposed which was known as the Uniform Child Custody Jurisdiction Act. This incorporated the PKPA’s concepts of home state and recognition of other state judgments. Gradually, all states adopted a version of the UCCJA. Massachusetts was among the last states to adopt this. It can be found in the Massachusetts General Laws as chapter 209B. Included in the MCCJA is G.L.c. 209B, § 14 which reads: "To the extent that the legal institutions of other nations have rendered custody determinations in substantial conformity with the provisions of this chapter, the courts of the commonwealth shall grant due recognition to such determinations"
This provision should discourage transporting children from another country to Massachusetts to gain an advantage in a custody dispute. However, as we can tell from this current case, not all international decisions will be recognized by Massachusetts courts.
In Charara v. Yatim, the husband and wife were living in Massachusetts with two minor children. They had both been born in Lebanon and were Shia Muslims but had become US citizens. The children were also US Citizens and had been residing in Massachusetts for more than six months prior to the first filing in Lebanon. In 2004 the couple went to Lebanon to obtain a religious divorce. Approximately one month later, the husband filed a guardianship action in Lebanon. Eventually, a Lebanese Court issued a judgment granting custody to the husband. Consistent with Lebanese law, the decision was issued by a religious court. The wife participated in the Lebanese proceeding. After the Lebanese case concluded, the wife returned to Massachusetts and filed an action to obtain custody of the children.
The Massachusetts court focused on two points in making a decision: 1) home state of the children and 2) substantial conformity with Massachusetts law. As the children had been in Lebanon for only one month prior to the filing of the guardianship action, the Lebanese decision was not entitled to recognition in Massachusetts. In addition, Lebanese child custody law differs from Massachusetts. Under the Shiite religious law, a father who is a fit parent will have custody of male children. Fitness of the mother is not relevant to the court’s determination. Massachusetts law is based on the "best interests of the children." This standard requires a judge to consider the fitness of both parents and does not give an advantage to one gender. There are many factors a Massachusetts judge considers including which parent has acted as the homemaker prior to the breakup of the family. Lebanese law is more limited and does not allow for equal consideration to both mother and father.
The failure of the Lebanese Court to consider both parents equally and to consider the role as homemaker was found by the Massachusetts Court to not be in substantial conformity with Massachusetts law. As a result, the Massachusetts Court refused to recognize the Lebanese decision and made its own determination.
It should have been sufficient that the Lebanese litigation was commenced when the children had been in Lebanon for only one month. However, the Court went on to decide the case on the grounds that the foreign decision was not in substantial conformity with Massachusetts law.
Massachusetts law currently mandates that the court focus on the children and not the parents. This is what the court did in this case. This case should be viewed as a victory for children’s rights.

When should a parent coordinator be used?

2010-12-18T13:49:00.000-08:00

A parent coordinator is a neutral third person who is appointed by the court to resolve custody disputes between parents who no longer live together or are divorced. Resolving disputes by a parent coordinator is less expensive than court proceedings and much faster. Either party can "appeal" the decision of the coordinator to a Judge.
A parent coordinator is appointed by a Judge and the order will spell out the specific powers of the PC. The cost of the parent coordinator is usually split between the parties and the PC process is usually conducted without involvement of attorneys.
A parent coordinator works best when both parties act in good faith. By the time a family becomes involved with a PC, the two parents have developed a history of not working together. In the worst cases, they are frequent users of probate court as they return to have the judge decide minor matters. Often, they tend to oppose each other in parenting decisions and have difficulty compromising. While they both may seek the best interests of the child, they are not interested in reaching an agreement with each other. In many cases, neither parent’s position is harmful to the child. However, the parents simply won’t agree with each other. In cases like this, the decision of the PC is not nearly as important as the fact that a decision is being made.
Each person who acts as a parent coordinator uses different procedures. A typical method is for the PC to meet the parties to get to know them. After that, contact is usually through email or telephone calls. Sometimes, the PC will request a meeting with the two parents to resolve matters. Frequently each parent will email their decision to the PC and the PC will email a decision back. This keeps the cost to a minimum.

At what age can a child decide which parent to live with?

2010-12-16T18:02:00.000-08:00

I am frequently asked by clients about when a child gets to decide which parent they will live with. Often, the parents inform me that they know that the child gets to decide at a particular age. However, there is no simple answer. There are many factors the court must consider when deciding child custody or visitation.
A judge will decide custody and visitation for a child based upon the standard of the best interests of the child. A child’s preference for custody is one factor that may be considered by the court. When the child is young, the court seldom pays attention to the child’s expressed preference. As the child gets older, the court gives increased weight to the preference. When the child is 14, the court must inquire of the child’s preference. This doesn’t mean that the Judge automatically does what the child wants. The Judge must still consider many factors in addition to the preference of the child. For many children, when they are 16 or 17, their preference may become so compelling that the court appears to decide solely on this one factor.

Divorce, children & the holidays

2010-12-11T13:39:00.000-08:00

Every parent should want to raise their children to lead happy, healthy lives as productive members of society. If possible, divorcing parents want their children to be free of the stress and strife caused by breakup of the family. Unfortunately, the holiday season has the potential to create hostility, turmoil, chaos, and stress. This can cause children to hate the approach of holidays that once heralded joy and celebration. Parents who are separated or divorced need to plan the holidays in a way that is designed to reduce the stress on the children.
Adults, even adults who are not divorced, experience stress around the holidays. We spend more money, plan events, and eat too much. Sometimes, this stress and tension causes people to take their anxiety out on the people we live with. It is important to understand the extra pressures at this time and that everybody suffers from the holiday season.
During the holiday season, children often dwell on the breakup of the family. This is natural as holidays are filled with family traditions and reminiscing on holidays past. Children are encouraged by media that if they are good, their wishes will be granted. There are even television shows where children wish for their parents to reconcile and, in TV fashion, they get their wish. In real life, the parents don’t magically reconcile. Children who wish for this miracle are bound to be disappointed. Instead of a reunified family, children have to adjust to a visitation schedule where the holidays are divided between two sets of parents and their extended families. Children need help from their parents and families to adjust to the new reality. The parents should understand the children if the children are sad or depressed about the holidays. Discussion and understanding may help the children adjust to the breakup of their parents.
Parents should think about holiday traditions. Some traditions may be painful for the children as they remind the children of what has been lost. Other traditions need to be followed as the children continue to enjoy the events. Another choice is to create new traditions. If each household develops different traditions, the children can look forward to time with each parent.

Each holiday lasts for a limited time. If the holiday is to be split between the parents, that means that each parent should have half a holiday with the children. As such, holiday visitation can become an annual negotiation between the parents.
Children can either dread the shortened holiday time or rejoice with two holiday celebrations. The result can be an attempt by each parent to indulge the children with excessive toys. Parents may feel guilty about the breakup or attempt to bribe their children to win their affection. Such actions are harmful to both parents and children. Children will learn to exploit the parents and make the holidays an annual problem instead of an annual celebration. Sometimes, parents will each buy the same gifts for the children as there is no attempt to cooperate. A better approach is for the parents to cooperate. They should develop a plan for the holiday that is fair and allows annual switching of time. If possible, the parents should take the child’s wish list for toys and discuss dividing the toys or buying toys that are similar but not identical.
Parents should remember that while they are no longer married to each other, they will always be parents of these children. Both parents will want to spend time with their children on the holidays for the rest of their lives. When the children are adults, they shouldn’t have to choose which parent they will choose for the holidays each year. Hopefully, the children will be comfortable inviting both parents to share their home for the celebration. Parents who demonstrate an ability to cooperate when the children are young are more likely to enjoy the holidays with the children in the future.

A family law case is now before the United States Supreme Court

2010-11-28T14:38:00.000-08:00

It is rare when the United States Supreme Court hears a child support case. However, there is a case before the Supreme Court now involving such an issue. In the case of Turner v. Price, Docket No. 10-10, Turner was incarcerated for one year for non-payment of child support. The South Carolina Court that heard the trial did not make a finding that Turner was indigent and did not appoint an attorney to represent him before sentencing him to jail. If Turner was sentenced in a criminal case, he would have had a court appointed attorney. However, in a civil contempt case, under South Carolina law, he didn’t qualify for a court appointed lawyer.
It doesn’t make any difference to a person if they are jailed in a civil case or a criminal case. Jail is jail either way. Violation of a court order may result in a case for civil or criminal contempt. The court has the power to jail people for violation of court orders. Some people violate court orders and fail to pay child support because they can’t afford to pay the money. Others violate court orders and fail to pay child support because they choose to not pay the money. Clearly some people need the threat of a jail sentence or even time in jail as an incentive to pay child support. Frequently, the determination of imposing jail time is not known until the end of the hearing.
The case of Turner v. Price raises the issue of the constitutionality of imposing a jail sentence without the benefit of an attorney to defend the person before jail is imposed. Just as in criminal cases, the result of the civil contempt may be different if a lawyer is involved. This is an important issue as nobody should go to jail without due process and an opportunity to present a defense. These are not rights guaranteed in criminal cases. These are rights guaranteed to Americans under the United States Constitution. On the other hand, the state must pay for court appointed attorneys. If the defendant can’t afford an attorney and the state must provide one then the state must also pay for the attorney. As the states are cutting budgets and court systems are experiencing large cuts in their budgets, it is difficult to argue that they should allocate money to pay attorneys to represent parents who won’t pay child support. I suspect that any ruling on this case will extend to all civil contempts including contempts for non-payment of alimony and any other violation of a court order.
This case bears watching but we may be disappointed in the result. The court ordered the parties to brief the issue of incarceration for civil contempt without a lawyer and another issue. They also ordered the parties to brief the issue of whether the Supreme Court has jurisdiction to hear this case. If the court finds no jurisdiction, they won’t may any orders on the other issue. The briefs in this case are due to be filed in January and February, 2011.

Do-it-yourself kits

2010-11-21T15:36:00.000-08:00

There are advertisements for legal services such as do-it-yourself kits for divorce, wills, powers of attorney, bankruptcy, etc. These kits are usually sold by non-lawyers. People should not use these kits or services of this nature. Decisions in legal matters of this nature have long lasting consequences. Failure to include all issues or failing to address an issue properly is likely to have unfortunate and expensive results. A divorce agreement should be custom designed for each couple and tailored for the state of the divorce. Kits of this nature may be general kits that accommodate most states but not all and most couples but not all. People should avoid kits and advice from non-lawyers.

Single parent adoption

2010-11-20T11:27:00.000-08:00

A recent case in Massachusetts addressed an issue that is frequently raised by parents who don’t want to pay child support and gave the same answer as always. In the case of ADOPTION OF MARIANO, 933 N.E.2d 677 (Mass.App.Ct. 2010) the father of a child wanted to relinquish parental rights so that he wouldn’t pay child support. Whenever this issue was raised in the past the court always refused to terminate parental rights. That is because the focus is the child and not the parent. Every child deserves two parents and every child deserves child support. As a result, the courts have always refused to terminate parental rights unless another adult sought to adopt the child.
In the case of ADOPTION OF MARIANO, 933 N.E.2d 677 (Mass.App.Ct. 2010) the mother sought a single parent adoption by which the father would relinquish all rights and duties towards the child and the mother would become a single parent. This is just another attempt to terminate parental rights of the father but with a twist. In this case, the court reached the same result and denied the single parent adoption. Parents may not bargain away their children’s rights to support from either parent.

Guardianships and children living with relatives.

2010-11-06T15:58:00.000-07:00

Currently, there are many families that don’t follow the traditional pattern of two parents with children. Frequently, children are living with friends and relatives instead of their parents. When this happens, the parties should go to court and get a guardianship so that the custodial adults will have all the rights to act for the children as parents can. Although guardianships sound like a permanent loss of parental rights, this is not correct. Guardianships, like all orders and judgments relating to children, can be changed if the circumstances change. The natural parent wanting the child to return to the parents home may be sufficient to terminate the guardianship. A guardianship has many advantages including education, insurance, and medical care.
The child can go to school from the home of the custodian. Towns spend money for every student in the school system. They frequently oppose enrolling students who live with relatives unless there is a guardianship.
The custodial parent can enroll the child in their family health insurance policy with a guardianship. This can be an important issue as even routine medical visits incur large bills without insurance.
With a guardianship, the custodial adult can give permission for medical treatment and activities. Other than emergencies, doctors shouldn’t treat children without parental consent. Schools won’t let children go on field trip or play sports without parental consent. Other organized activities won’t allow participation without permission. While the natural parent may be available to grant permission, a guardianship gives the custodian, the ability to deal with all of these issues.

Health insurance for ex-spouse

2010-11-03T18:23:00.000-07:00

Massachusetts has universal health insurance. In a divorce, this means that the judge will look for ways to provide health insurance for the entire family at the lowest cost. If there are children of the marriage, the likely result is a family health insurance policy that covers the entire family including the ex-spouse. I n Massachusetts, an ex-spouse is treated as a current spouse for health insurance as long as neither spouse has remarried. People frequently think that the obligation to insure the ex-spouse means that a new spouse will be uninsured. This is not correct. Once one of the parties has remarried, the ex-spouse is not eligible for insurance coverage under the family health insurance policy. Of course, before any decisions are made about insurance coverage, the divorce decree and agreement need to be carefully reviewed.

How much Parenting Time will result in a reduction in child support?

2010-10-28T17:56:00.000-07:00

I received a question from a parent who has the child for about one-third of the time. The parent was asking about reducing child support based on the amount of parenting time spent. Child support in Massachusetts is controlled by the child support guidelines. These guidelines specifically address parenting time. According to the guidelines, the standard split of parenting time is two-thirds with the primary parent and one-third with the other. If the other non-primary parent has significantly more than one-third parenting time, then there should be a reduction. Generally, this means that the parenting time should approach a 50/50 split. Of course, the opposite argument can be made as well–if the non-primary parent doesn’t spend much time or any time with the child, then an increase in child support is warranted.

Divorce Insurance

2010-10-24T14:10:00.000-07:00

A company is now offering divorce insurance as protection against your marriage falling apart. While I don’t think this product can legally be sold in Massachusetts, it is a new concept that is worthy of discussion. Perhaps, someday, it will be legal to buy this in this state.
In Massachusetts, all insurance must be licensed. I looked at the Division of Insurance web site and didn’t find this listed. As a result, I think that they are not licensed in Massachusetts and can’t sell this insurance. I suggest that Massachusetts citizens check with the Division of Insurance before looking at this product.
Divorce insurance is being sold by SafeGuard Guaranty Corp., an insurance company based in North Carolina. The product is called Wedlock Divorce Insurance. The website does not indicate that they are limited to sales in certain states.
The insurance pays a lump sum in the event a policy holder gets divorced. The amount of the payment is based on the policy purchased. The amount paid is not related to court orders for support or property division. The coverage is sold in units of $1,250.00 based on a monthly premium of $15.99. As an example, assume that a person purchased 10 units at a monthly cost of $159.90. If a divorce occurs, the company will pay the insured $12,500.00. There is a four year exclusion period so if the divorce occurs within four years, nothing is paid.
The biggest problem I see is that a Massachusetts court is likely to view the insurance policy as another asset subject to division. This would defeat the purpose of the insurance. Of course, insurance is based on the concept that the insurance company makes more money than it pays out. If you can save the money each month, you are better off.
I think this is an interesting idea but not a product than can benefit most people in this state if it can be lawfully purchased.

My ex-spouse brought me back to court. Do I have to show my new spouse’s income on my financial statement?

2010-10-12T18:51:00.000-07:00

A complaint for modification of child support will require both parties to file financial statements. The latest version of the financial statement has a line to show contribution from other household members. This would include a spouse or a roommate if they pay a portion of the household expenses. The financial statement is suppose to show your complete financial situation. If your rent, mortgage, food bills, or any expenses are paid by another person, they need to be shown on your financial statement to give a complete and honest financial presentation. However, your spouses income that is not used for expenses does not have to be shown. On the other hand, you may have to reveal their income in discovery if documents are requested or other information is sought. An example is a joint federal tax return would have to be produced and would show your spouses income.

What effect does remarriage have on child support?

2010-10-06T19:25:00.000-07:00

In most cases, remarriage has no effect on a prior child support order. However, where the new spouse has high income or assets, this could be different. Child support is based certain concepts. One of them is that each parent has to use their income for their own living expenses. While a new spouse has no obligation to support a step child, they do have an obligation to support their spouse. Where the new spouse has enough income to support themselves and the parent, this could mean that the parent has more income available to support the child. As such, a judge could change the child support by considering this factor.

How much notice do you need to know about a restraining order?

2010-09-22T18:11:00.000-07:00

Apparently, very little notice is required to serve legal notice of a restraining order. In the recent case of COMMONWEALTH v. MELTON, 08-P-2143 (Mass.App.Ct. 9-2-2010) the woman who got a domestic abuse restraining order told her former boyfriend in a telephone call that a restraining order had issued against him. He was never served with a copy of the order nor told by the police that an order had issued. The only way he had any notice of the order was from his former girlfriend. Because he called her after she told him about the order, he was convicted of the crime of violating a restraining order. The problem is that she could have lied about the restraining order. This would have given her an unfair ability to torment him by telling him that a restraining order had issued when it had not.

Can a parent move with children to another part of Massachusetts?

2010-09-19T07:17:00.000-07:00

If a party seeks permission from a judge to move to another part of Massachusetts, a Judge will consider the request under the same standards that apply to removal out of Massachusetts. The Court can prevent the move "where the relocation would evidently involve significant disruption of the noncustodial parent's visitation rights and the parents cannot agree." The Judge will balance the negative effects on visitation against the benefits to the children for the move. Of course, the Judge can only make such rulings if the parent seeks permission before the move or the other parent brings an action to prevent a move. In the absence of a court order, there is nothing to prevent a parent from moving within Massachusetts.

Upon remarriage, do you sttill have to cover the ex-spouse on health insurance?

2010-09-12T12:49:00.000-07:00

The obligation to provide health insurance to an ex-spouse is spelled out in the divorce decree. If the decree incorporates a separation agreement, the separation agreement will describe the obligation. The problem is that a family plan which will cover an ex-spouse after a divorce, won’t continue to cover the ex-spouse after remarriage. Massachusetts treats an ex-spouse as a current spouse for health insurance purposes but this terminates upon remarriage as the new spouse is now covered under the family plan. At this time, you won't be able to cover your ex-spouse on your health insurance as you can only have one spouse covered. If you are required to provide health insurance and you can’t cover under a family plan you may have to purchase a separate policy for your ex. It all depends on the wording of your divorce judgment.

Beware of travel agents selling divorces

2010-09-06T17:40:00.000-07:00

Every now and then I find an advertisement for a $99.00 divorce. Sometimes it’s an ad for a twenty-four hour divorce. While these sound great, they won’t get you divorced. These ads offer divorces in foreign countries like Caribbean islands. They will get you a divorce certificate but the divorce won’t be recognized in Massachusetts. Massachusetts will recognize divorces from other states because the US Constitution requires that each state give full faith and credit to the court decisions of the other states. There is no requirement for foreign countries. Taking a week vacation in the Caribbean and coming back with a divorce decree will get you a tan but not much else.

The Supreme Court prevents forum shopping in international custody battles.

2010-09-04T09:24:00.000-07:00

In the recent Supreme Court case of Abbott v. Abbott, 130 S.Ct. 1983 (2010), the Court ordered a child returned to Chile. In this case, the mother had custody under proceedings in Chile and removed the child to the United States in violation of Chilean law. While the case is steeped in the language international child custody disputes (Hague Convention, right of ne exeat, etc.) the decision prevents forum shopping in international custody disputes. Forum shopping is the idea that a litigant can control the orders of a court by moving from one country (forum) to another. For over thirty years, the United States has had laws that prevent moving from state to state for forum shopping (Parental Kidnaping Prevention Act and Uniform Child Custody Jurisdiction Act). This decision reinforces the concept that the United States will return children to foreign countries if they are removed in violation of the law of the foreign country.

In the Abbott case, the mother argued that since she had custody, she could remove the child without permission of the father of the child or a court. Even though the father did not have custody, under Chilean law, he had the right to prevent the child from being removed from Chile. This right to prevent removal, called ne exeat, was sufficient to cause the Supreme Court to return the child to Chile.

This decision should prevent future attempts to remove children and bring them to the United States. The predictability of a return of the child should prevent removal from occurring.

Unmarried parents can collect child support

2010-08-31T18:13:00.000-07:00

I received an email from a woman who was told that she couldn’t get child support because she never married the father of the child. I don't know why she was told this. However, it is wrong advice. An unmarried parent can get child support if they can establish the identity of the other parent. Before DNA testing, this was difficult and embarrasing as it required public testimony about sexual activity. Today, most cases are resolved by DNA testing. A lawyer can assist a person to establish and obtain child support. Another resource is the Department of Revenue. Parents can fill out a form and request that DOR establish paternity and collect child support. DOR is free but will take much more time than an atttorney. If you can't afford attorney fees, then you should contact DOR.

Is mediation to settle a divorce right for you?

2010-08-25T19:35:00.000-07:00

Mediation as a way to settle divorce cases is growing in popularity. If it works, it will save the parties money and will be quicker than a divorce trial. However, mediation is not for every couple. Mediation is a process that encourages compromises. If both parties are not willing to compromise to settle the issues, then mediation is not appropriate. Both parties must be willing to share financial information and look for a fair and reasonable settlement. Custody disputes are not well suited to mediation. Mediation looks to compromise by both parties meeting halfway. If both parties want primary custody, meeting halfway results in a custody situation where the child spends equal time with each parent. This may not be in the child’s best interest.

When does a child get to choose which parent they will live with?

2010-08-22T07:31:00.000-07:00

A common misconception is that children can decide custody at age 14. This leads parents to try to influence or bribe the child to gain an advantage in a divorce. Legally, a child can decide which parent will get custody at age 18 when the child is an adult. Before that, as a general rule, children don't decide custody. If the child is 14 years old or older, the Judge must have the child interviewed to determine the child's wishes. However, this is not the determining factor. A judge should decide custody based on the best interests of the child and not the child's wishes. Attempting to influence the child can backfire as a judge may decide that such attempts are harmful to the child.

What is a successful divorce

2010-08-19T18:23:00.000-07:00

A successful divorce means different things to different people. To some people, it means that they beat the system and hid assets so they received more assets in the property division. To others, it means that they made their spouse suffer during the divorce process. For some people, it means that they spent as little money as possible on the divorce process. I think that a successful divorce should be measured by the success of lives after the divorce is over. Children should grow up to lead "normal" lives with healthy relationships with both parents. Parents should be able to lead individual lives without facing financial ruin. In an ideal world, divorced parents should be able to communicate with each other for the benefit of children. Success should be measured by long term results and not by the immediate results of a divorce.

Parents should exchange financial information on a regular schedule

2010-08-16T18:24:00.000-07:00

In Massachusetts, a modification action to increase child support can be filed upon a material change of circumstances or every three years. A person receiving child support needs to know about the other parent's income or they are likely to file a modification just to find out what they currently earn. While this can be good for lawyers, it is expensive for the parties and harms the working relationship between the parents. A better alternative is for the parties to exchange financial information on a regular basis and calculate the child support guidelines. This gives the parties the option of making an agreement on the new amount of child support and avoiding fighting in court. If they resolve the issue between them, they can file the agreement with the court and make it a court judgment. They should exchange information at least every three years.

Massachusetts now allows postnuptial agreements.

2010-08-15T15:01:00.000-07:00

In the recent case of Ansin v. Craven-Ansin, Massachusetts established that spouses can contract with each other in limited circumstances. Known as marital agreements, postnuptial agreements, or postnups, these agreements can be used in an effort to save a marriage or for estate planning. Such agreements will be valid and enforceable provided they meet the highest standards of fairness and good faith. This means that there must be full disclosure of finances and assets and the agreement must be free of fraud, and coercion. Each party must have the opportunity to consult an attorney before execution. In addition, the agreement will be compared to property division under the divorce laws to determine fairness.

Bring proposed solutions to court

2010-08-13T07:45:00.000-07:00

Courts deal with problems. Every case is brought because the parties have a problem that can't be solved without the assistance of a Judge. The parties should think about ways to solve the problems and propose these solutions to the Court. While most criminal cases involve punishment, most civil cases look to ways to solve problems and not punish. If you are suing for money, know how much money you want. If you are suing for custody or visitation, be prepared to explain where a child will sleep, eat, and go to school. Be prepared with a visitation plan for the other parent. Judges are more likely to give you what you want if you are able to tell the judge what you desire.

Welcome to my Family Law and Divorce Law Blog

2010-08-12T07:45:00.000-07:00

Thank you for visiting my Divorce and Family Law Blog. Please check back daily for new information on topics of interest.