Can an out of state divorce decree be modified by a Massachusetts Court?

In a recent case, Cohen v. Cohen, the Massachusetts Supreme Judicial Court ruled that Massachusetts had no jurisdiction to modify a California divorce decree to order college expenses and child support. This case is easily misunderstood as the decision is limited to a particular type of case.

In the Cohen case, the parties were divorced in California and the Wife and child continued to live in California. The husband moved to Massachusetts. This meant that the Wife had to use the Massachusetts Courts to enforce the California divorce judgment. She could have hired a Massachusetts lawyer to collect her child support or she could have used the California child support agency to collect the money. She selected the California child support agency.

Every state has an agency which collects child support for residents of the state. In the Cohen case, the California agency initiated an interstate child support collection action under the Uniform Interstate Family Support Act (UIFSA.) Both Massachusetts and California (and probably all other states) have enacted UIFSA into their state law. While it was California in this case it could have been any state. Under UIFSA, California asked Massachusetts to file a case to enforce the California divorce decree and California law. An action was filed in Massachusetts by the Department of Revenue (DOR.) to enforce the judgment. While the Massachusetts Court had all of the powers under Massachusetts law to enforce the judgment, it had no power to modify the judgment. In the Cohen case, the divorce decree made no provisions for college education or medical bills of the child. The Massachusetts Court was unable to make any orders relating to payment of college education or medical bills.

This case doesn't mean that the Wife in the Cohen case could never ask a Massachusetts Court to modify the California Judgment. It only means that she couldn't modify under UIFSA. She could have hired a Massachusetts lawyer to enforce the California decree and modify the judgment. Had she proceeded in this manner, she would have enabled the Massachusetts Court to use all of its powers and authority including the power to modify the California judgment. If the Wife had filed an action in Massachusetts it would have been very expensive. She would have had to pay for a Massachusetts lawyer instead of having DOR represent her for free. She would have had to travel to Massachusetts for the trial and possibly for a pre-trial conference instead of staying in California. Of course, there is no guarantee that a Massachusetts court would apply Massachusetts law and modify the judgment. Instead, the court could have ruled that the Wife must file a modification in California or that Massachusetts would apply California law. As a general rule, using UIFSA for interstate child support enforcement is a better choice.

Interstate child support enforcement is a complicated area of law. If you have a case that crosses state lines you should consult an experienced family law attorney.

Pre-Nuptial Agreements are not automatically enforced.

Pre-Nuptial Agreements are not automatically enforced.

Pre-nuptial agreements in Massachusetts are enforced if they are fair at the time of the execution of the agreement and fair at the time of the enforcement of the agreement. Fairness at the time of the execution means that there was complete financial disclosure, had the ability to obtain advice of counsel, the agreement was free of duress, misrepresentation, and fraud and the terms are fair. Since the agreement must also be fair at the time of enforcement, the Courts take a “second look” at the agreement and view it in the context of the financial circumstances at that time. The agreement will be enforced unless the court finds that it is unconscionable. This means that the agreement will be enforced unless the agreement would leave the contesting spouse without sufficient property, maintenance, or appropriate employment to support herself.

In a recent case, Kelcourse v.Kelcourse, Mass.App.Ct. (Jan. 21, 2015), the court refused to enforce a pre-nuptial agreement. The agreement on its face appeared fair. The agreement gave the
Wife a house and alimony as part of the settlement. The problem was that the house needed over $300,000.00 in repairs and had negative equity. The Wife lacked funds to repair the house and, due to the negative equity, was unable to sell the house. The Court found that the condition and finances of the house rendered the agreement unconscionable and unenforceable.

The Kelcourse case means that in Massachusetts the second look is a real and substantial examination. The Court won't enforce the agreement if the spouse won't be able to support herself. In other words, disclosure and lack of duress is not enough to make an agreement enforceable. The second look must examine the circumstances to see if the facts and enforcement would shock the conscience.

If parties want a pre-nuptial agreement they should consult family law attorneys to advise them. This is not an area where parties should do-it-yourself. When the parties seek to enforce the agreement it may be too late to fix any problems.

In Massachusetts, home improvement contractors need to follow the rules.

Massachusetts legislation protects homeowners from the unscrupulous contractor. They regulate

• who can do home repairs;
• how they contract with homeowners;
• in many cases, require a right of cancellation;
• limit the schudule of payments to the contractor; and
• mandate that the homeowner may take disputes to arbitration.

Violation of any of these requirements can result in criminal charges or, in a civil case, payment of treble damages and attorney fees of the homeowner.  A recent case, Groleau v Russo-Gabriele (Norfolk Superior Court No. 2012-1818) (Nov 26, 2014), the court found that writing a contract that took away the homeowner's right to arbitration was an unfair or deceptive act. As a result, the contractor had to pay the damages the homeowner incurred to finish the construction and pay treble damages and attorney fees.

This case shows that contractors have to comply with the state regulations and that homeowner's can't contract away their protections. It is a complicated area of the law. Contractors should consult an attorney before soliciting business from homeowners. Homeowners should consult an attorney before signing a contract for home repairs.

The Massachusetts Alimony Law – A Deal is a Deal

In 2011 Massachusetts enacted an alimony reform law. This law changed many aspects of alimony including imposing termination of alimony when the payor reaches the maximum retirement age and when the payee cohabits. Since enactment of this law, lawyers and Judges have been struggling with the question of how do these changes affect prior alimony agreements and judgments. On January 30, 2015 the Supreme Judicial Court answered this question by stating in essence that a deal is a deal. The Court held that the limits for cohabitation and retirement do not apply retroactively to alimony agreements and judgments that pre-date the enactment of the new law.

This interpretation of the new law does not apply to all alimony judgments. When parties enter into a separation agreement, they have the ability to specify that the agreement merges into the divorce judgment or survives as an independent agreement. If the agreement merges with the divorce then the agreement may be modified in the future if certain conditions are met. If the agreement survives as an independent contract, then the agreement can't be modified by a judge. It may be modified by agreement of the parties. The new alimony law does not give the courts the power to change any prior separation agreements that survive. This new interpretation only applies to separation agreements that merged into the decree of divorce.

In three cases, Chin v. Merriot, Doktorv. Doktor, and Rodman v. Rodman, the court held that with one exception, all alimony judgments that pre-date the new law are subject to modification as if the new law never went into effect. This means that alimony can change if the terms of the separation agreement or divorce judgment state conditions that will change or terminate the alimony or if there is a material change of circumstances. Reaching retirement age or the recipient of alimony cohabitating only constitutes a material change of circumstances if the agreement specifically states so. Otherwise, there can not be a modification for these reasons.

These decisions indicated that the new law does allow termination of alimony for what is known as “durational limits.” For marriages less than twenty years, alimony is limited to a percentage of the length of the marriage. The longer the marriage, the higher the percentage. Prior alimony awards that had no termination date that are merged into the decree of divorce and the length of the marriage is less than twenty years are subject to these durational limits. As a result, a modification may be filed to terminate alimony under these circumstances.

The new alimony law is very complicated. If you have questions about the application of this law you should consult an experienced family law attorney for advice about your particular situation.

What can a parent do when they are the victim of parental alienation?

There is no perfect answer to this question. As long as one parent keeps fueling the alienation flames, the alienation will continue. Every case of parental alienation is different but the cause is the same. One parent uses the children as weapons to hurt the other parent. In essence, the parent is sacrificing the children's well being to fulfill their own selfish desires. The following suggestions may make no difference or may solve the problem.

1. Keep a diary. This should detail all of your attempts to maintain a relationship with the children and the children's responses. Whenever possible, backup the diary with documents that corroborate the information you note. Emails, telephone bills, and receipts from stores and restaurants should be preserved. Use an email program that documents when the emails are read by the recipient.
   
2. Take advantage of all contacts permitted by the court. Don't miss any visits. Make telephone calls or Skype calls every day if allowed by the court. Use texting to communicate with the children but not excessively. Send gifts or cards for every occasion possible. Cards are created for many holidays such as New Years, Valentine's Day, Independence Day, and many others. Make sure you have copies of the cards and enter the mailing of the cards and the gifts in your diary. Of course, make sure you send gifts for major holidays or events like birthdays or Christmas.
   
3. Attend every event in your child's life. Don't miss a dance recital, a little league, a concert, or any other event in which your child is a participant. Contact the school and obtain information about events, parent teacher conferences, and make sure the school has your contact information. Do the same for the child's pediatrician, dentist, and other doctors. Make sure you are on time for each event.
   
4. Do everything that the court orders. If the court orders counseling, make sure you go to counseling. If the court orders drug tests, make sure you avoid using drugs and take every test ordered. Continue counseling and drug tests even if the children or the other parent stop attending.
   
5. Take a parenting class. You may be the best parent in the world but the court will be impressed by your efforts to improve yourself.
   
6. Never ever use physical force to discipline your children. The law may permit use of reasonable force but you are under a microscope and can't afford the luxury of using physical force. The exception is that you may have to restrain (but not hit) a child to prevent harm to another child, yourself, or someone else.
   
7. Avoid discussions with your child about the alienation, child support, or any issue you have with the other parent. Make sure the children can't hear when you have discussions with other people about these matters.
   
8. Be careful about use of social media. You should assume that everything you post on social media will be reported to the Court. Never say anything critical or negative about your children, the other parent, the attorneys, or the Court. Social media can be used to make positive statements about the children but do so sparingly. Don't comment on every posting by your children. It will make you look like a stalker.
   
9. Tell your children that you love them. Tell them this at the end of every phone call and every visit. Don't overdo this. Once a day is fine. Four times a day makes you look crazy. Don't ask the children to respond in kind. Pressuring the children for affection is certain to hurt you.
   
10. Be persistent and consistent in your efforts to maintain your relationship with your children. Don't give up hope no matter how frustrating it becomes.
    
11. Retain a family law attorney and regularly discuss the parental alienation and your efforts to maintain the relationship. In many cases, only court action can stop the abuse to the children. An experienced family law attorney should be able to advise you about when to resort to the courts. Like everything else in regards to parental alienation, it may take a number of court actions before you start to see results.  In the most severe cases of parental alienation the court can  change custody.
    

Cyberharassment is still harassment

The internet provides new opportunities to commit criminal acts. However, in many instances, laws that were not designed for the internet provide remedies. A recent case illustrating use of a traditional law to punish internet conduct is Commonwealth v. Johnson, 470 Mass. 300 (2014).

In this case, a husband and wife harassed their next door neighbors through a third person. They placed false ads on Craig's list so that potential buyers of goods would bother the family day and night. They filed a false claim of child abuse with the state resulting in an investigation of the family. In addition, threatening emails were sent.

Massachusetts G.L. c. 265, § 43 punishes as a criminal act causing a pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarms or annoys that person. The statute does not mention internet, computers, or cyberspace. However, the court found that this statute was sufficient to convict a person who used the internet and computers to harass someone.

Just because computers and the internet became household items after most criminal laws were created doesn't mean that they are not governed by the laws that predated the internet. If you are the victim of harassment you should consult an experience lawyer who can advise you concerning the laws that are available to protect you.

Health Insurance, Emancipation, and Separation Agreements

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

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

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

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

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

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

Child support agreements need court approval

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Does Massachusetts have a remedy for revenge porn?

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

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

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

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

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

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

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

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

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

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

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

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

Is sexting naked pictures distribution of pornography?

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

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

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

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

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

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

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