Spying on a spouse

When a marriage deteriorates, some people decide that they should spy on their spouse to either help them decide if they should get  a divorce or to gain an advantage in a divorce. Many people think that proof of adultery will gain them an advantage in a custody battle or a financial battle in a divorce. In Massachusetts and other states, proof of adultery seldom gains any advantage at all. I once heard a Judge state that everybody commits adultery now and nobody cares anymore. While it may not be true that nobody cares, it does appear that Judges in Massachusetts ignore proof of adultery when deciding divorce cases. Regardless of the view of the Court, some parties in a marriage continue to believe that it is important to spy on their spouse.

A recent article in the Wall Street Journal describes some instances of spouses spying on spouses and the technology available. Generally, the technology allows the sound recording of telephone calls and oral statements, video recording of video telephone calls and actions of people, recording of use of computers and cell phones, and gps tracking of cars and cell phones. All of the actions can be considered illegal and possibly even criminal. The Wall Street Journal article describes people who went to jail for spying on a spouse.

Massachusetts prohibits the unconsented recording of a person's voice. G.L. c. 272, § 99. The law covers recordings made from telephone calls or any other wire transmission. Violation of this law is a crime that can be punished by imprisonment. Federal law also punishes the unauthorized recording of a person's voice or telephone call. 18 U.S.C. § 2511.

Accessing someone's computer can be a crime under Massachusetts law and Federal law. The Massachusetts law, G.L. c. 266, 120F, has not been interpreted in a divorce setting. However, the intent of the law is to spying on another person's computer use. The Federal law, 18 U.S.C. § 1030, also makes it a crime to access someone's computer without authorization. Cell phones are small computers. I think that both state and federal laws can be used to prosecute a spouse who records the usage of another's cell phone.

Placing a GPS tracker on a spouse's car may be considered stalking. In Massachusetts, three or more instances of following another may be considered the crime of stalking. G.L. c. 265, 43. Following a spouse by a GPS tracker should be considered stalking as it has in other states.

In addition to potential criminal liability for spying on a spouse, Massachusetts law creates a right of privacy. G.L. c.214, § 1B. While this right is enforced through civil actions and not criminal, it should act as a deterrent to spying on a spouse. If the purpose of spying is to obtain an advantage in a divorce, violation of the right of privacy may cause a Judge to award money to compensate the victim spouse for the unlawful spying actions. In addition, Judges don't want to reward unlawful behavior and usually prevent the use of any information obtained by unlawful spying.

Usually, spying in a marriage hurts the person engaging in the spying behavior and not the victim who is subject to the surveillance. Divorce lawyers should discourage such behavior and advise clients to avoid the temptations to spy.

Is joint physical custody the right decision for your divorce?

It is not uncommon for parties to a divorce to consider joint physical custody. A joint physical custody arrangement occurs when the children spend approximately equal time with each parent. In some cases, this is best for the children. In many cases, the parents seek this because it lowers child support or it satisfies the emotions of the parents regardless of the effect on the children. In many cases, joint legal custody is not beneficial to the children. Experienced divorce lawyers should be prepared to discuss the potential for joint physical custody with their clients.

Before a divorce occurs, the parents develop responsibilities and patterns within the marriage. If the parties equally share the parenting responsibilities then it is appropriate to consider joint physical custody. On the other hand, if the parents have an arrangement where one party has primary responsibility for the children, then that parent should continue to have primary physical custody.

Joint physical custody is much more difficult than one parent having primary physical custody. It requires more cooperation between the parents. Joint custody should not be considered under the following circumstances:

1. The parties are not close to each other geographically.

Joint physical custody works on the theory that the children have two homes in the same school district or close enough that they have a short commute to school. If the parties live so far apart that the children don't have a reasonable commute, the children suffer. Long commutes interfere with children's sleep, homework, extra curricular activities, and relationships with their peers. Child custody arrangements should encourage the children to excel in school.

An alternative to having the children move from one parent's home to the other is an arrangment called a “bird's nest.” In a bird's nest arrangement, the children stay in one home and the parents move in and out of the home. This even more difficult than having two homes in the same area. However, it does allow one parent to have a residence some distance away.

2. The parents cannot communicate.

Joint custody requires the parents to communicate and cooperate. Children's schedules are constantly changing. The parties need to communicate regularly to have smooth exchanges. The frequent exchanges require communication on homework, school books, clothing, and toys. If the parties can't communicate, joint custody usually fails. Communication is usually very difficult if one parent is overly controlling, has a history of drug or alcohol abuse or has been physically abusive.

Joint physical custody is very difficult for most couples. However, if the parties can overcome the obstacles and succeed with a joint custody arrangement, the children may benefit.

Joint credit card debt and divorce

A divorce needs to address all marital assets and liabilities. Included in the liabilities are joint credit card debt. The final divorce judgment should address the joint credit card debts and explain who must pay the debt. The debt can be split between the spouses or one spouse may have the responsibility to pay the entire debt.

While one spouse may be responsible to pay the debt, this does not mean that the other spouse is free from ramifications of the debt. Creditors are not parties to the divorce and are not effected by the divorce decree. Another way of stating this is to say that a divorce judge can't order a credit to stop trying to collect a credit card debt from both spouses. Creditors are free to continue to take action against both spouses including listing the debt on the credit reports of both. If the husband is ordered to pay a credit card debt, the wife may find that she can't borrow money until this debt is paid in full. If the husband pays the debt but consistently makes the payments late, the wife's credit report may suffer along with the husband's.

The situation is the same with other joint debt such as auto loans, home mortgage loans, and business loans. The best way to deal with this potential problem is to have a lawyer draft language that does more than just obligate a spouse to pay a joint debt. The language should require indemnification as well.

Court Ruled DOMA unconstitutional

On May 31, 2012, the First CircuitCourt of Appeals unanimously struck down Article 3 of the Defense of Marriage Act (DOMA). DOMA was enacted in 1996 in response to the possibility that Hawaii would legalize same gender marriage. Section 2 of DOMA allows individual states to define marriage as restricted to mixed gender marriages and not recognize same gender marriages from other states. Section 3 defines marriage for Federal law as mixed gender marriage. Obviously, the purpose of DOMA is to deny the benefits of marriage to people of the same gender who want to have a life long relationship. The First Circuit only ruled on Article 3 as the case originated from Massachusetts. Massachusetts allows same sex marriages and recognizes such marriages from other states. As a result, the case did not contain a claim that allowed the Court to rule on Article 2.

Our country has a long history of protecting minorities against the tyranny and oppression from the rest of society. Starting with protection of the former slaves after the civil war, our country has protected minorities based on race, religion, national origin, marital status, handicap, and other categories. Same gender marriage should receive the same protection as other minorities. However, Congress, instead of protecting this minority, choose to single them out to deny them equality under the law.

While our county has a history of protecting minorities, it is the Courts who have protected them when the legislators have persecuted minorities. This is another case where the Courts must act to protect against the tyranny of Congress.

When a claim is made in a court that legislation is unconstitutional, the Court examines the law under long established rules for analyzing the law. The Plaintiffs in this case claimed that the law denied some people equal protection under the law. When an equal protection claim is made, the court must determine if the appropriate standard is the “rational basis” test or the more enhanced “strict scrutiny” test. Strict scrutiny is used if the law could impact a “suspect category”. Suspect categories are classes of people that Congress has declared are subject to discrimination. These categories include race, religion, national origin and other categories. However, sexual preference is not a suspect category. The problem is that sexual preference should be a suspect category.

My criticism of this case is that they court's logic is extremely weak. The Court could have ruled that there was no rational basis for Congress to create this law as the District Court found. Instead, they ruled that Congress had a rational basis to prevent a decrease in tax collections by giving same gender couples the benefit of marriage. They should have ruled that if Congress acts to persecute a minority by increasing their tax burden that this was not a rational basis. Congress should protect minorities, not tax them.

The Court ruled that there is a an intermediate standard somewhere between rational basis and strict scrutiny. They found that this intermediate standard mandates that the law be found unconstitutional. This position weakens the argument. When this case goes to the Supreme Court, it will be very easy for the Court to find that the First Circuit ruled incorrectly.

In my opinion, there is no difference between denying mixed gender couples the benefit of marriage or denying mixed race couples the benefits of marriage. Every argument that was used against mixed race couples has been used against mixed gender couples. Our country is better than this. The Courts should protect the rights of mixed gender couples to marry in the strongest terms.

Facebook and Divorce

Facebook and social networking are rapidly impacting divorces.  It is not uncommon for information posted on Facebook to be used as evidence in divorce and custody matters.  I was recently interviewed on television on this issue.    People post information on Facebook that shows infidelity or can be used to reflect on parenting skills.  Worse yet, other people can post information on someone’s wall and in the blink of an eye, it is distributed to all of the person’s Facebook friends.

A hypothetical example is a married man meets a woman in a bar.  The woman looks him up on Facebook and posts a simple message like “Had a great time last night, can’t wait to see you again.”  Within minutes after the posting, the man’s wife gets telephone calls about the posting from Facebook friends who read the posting.

Facebook doesn’t cause people to cheat on their spouse, It does make it easier to contact former friends and to rekindle old romances.  It also causes problems keeping new relationships secret.  The discovery of a new relationship that surfaces on Facebook may result in a divorce but it isn’t fair to blame Facebook for the end of the marriage.

While you may discover information on Facebook that indicates your spouse has cheated, an experienced divorce attorney can help you understand how this information will relate to a divorce or other court proceeding.

Islamic marriage contract (Sadaq) and divorce.

     Divorce in this country occurs in all cultures and religions and Islamic couples are not immune from divorce. A divorce in Florida reportedly raises unusual issues because of a traditional Islamic custom called a Sadaq. A Sadaq is a marriage contract in which it is traditional for the groom to promise a marriage gift to the bride.
     In the divorce between Farah Shamsi and her husband Abdul, the gift was a $20,000.00 dowry which at the time of the divorce had not been paid. The wife claimed that it had to be paid at the time of the divorce.
     In Massachusetts, a Sadaq will be treated the same as any other pre-nuptial agreement. Massachusetts requires that pre-nuptial agreements must be fair at the time of contract and fair at the time of enforcement or they are invalid. The court will examine the entire contract to determine validity. Clauses that prohibit divorce will not be enforced and may render the entire contract invalid. The court will look at the intentions of the parties when they signed the contract. The court will examine the financial disclosures provided at the at the time of the execution of the contract. The court will also look at the total circumstances at the time of the divorce. The enforcability of the Sadaq will be determined by Massachusetts law and not by Islamic law as part of the divorce proceeding.
     The same approach will be taken with other traditional marriage contracts such as a Jewish Ketubah. They will all be enforced according to Massachusetts law.

What is a QDRO?

QDRO stands for “Qualified Domestic Relations Order.” The term is created by federal law and applies to retirement plans created under ERISA, the Employee Retirement Income Security Act. ERISA is the federal law that allows private employers and individuals to have retirement accounts which have tax advantages to encourage the creation of private retirement accounts. ERISA also protects retirement accounts from most creditors. As a result, a person can't be sued and lose their retirement accounts. The exceptions to this protection against creditors are child support and alimony. If the creditor is a spouse or someone entitled to child support, they can reach retirement accounts. Retirement accounts can be a source of funds to pay alimony or child support. In addition, retirement accounts can be divided pursuant to a property division in a divorce.

Retirement accounts are not intended to be liquidated before retirement age. As a result, it could be a problem to divide the asset in a divorce. Congress solved this problem by creating the concept of a QDRO. A QDRO is an order from a court where, pursuant to a divorce, the court orders a portion of a retirement account transferred to a spouse. This allows the transfer of money from one retirement account to the retirement account of a spouse without incurring tax penalties. A QDRO describes with particularity how the account shall be divided and allows for future contributions to the account that may not be divided pursuant to the divorce. Since retirement accounts have many different characteristics, the QDRO should be tailor made to the employer's account. The QDRO is typically drafted by an attorney and then submitted to the employer for approval. After the employer has approved the QDRO, a judge must approve the document. The QDRO will then be filed with the employer. The transfer will then occur and penalties for early withdrawal can be avoided.

Is the new alimony law bad for women?

Wendy Murphy, an adjunct professor at New England School of Law wrote an article at cnn.com which is critical of the new Massachusetts Alimony Reform Law. The article, entitled “New alimony law is bad for women” gives examples of the unfairness of the new law. She equates alimony under the new law to earning a pension.

Ms. Murphy is correct in her criticism of the law but omits an important factor that mitigates against some of the harm. That factor is child support. The law treats child support as supporting the family of the child including the custodial parent. While a woman may not receive alimony she may receive child support for a number of years.

I agree with Ms. Murphy that making alimony a function of time spent in marriage instead of based on more equitable factors is a bad idea. I also think that the old law needed to be changed. As I wrote in an earlier posting, the new law shifts the concept of alimony from pro-woman to pro-man. However, it still needs to be changed to shift the law to a concept that is fair to both genders.

The new law needs to be interpreted by Judges.  Until there have been enough cases to explore the new law (expecations are that it will take over twenty years), lawyers will have to press the limits of the law to seek fair and equitable results for clients.

Divorce tax tips at tax time

Attorney J. Benjamin Stevens from South Carolina has written on his blog about Divorce Related Tax Tips atTax Time. The article is well written and worth reading. He talks about federal tax law and not matters that are specific to South Carolina. As a result, they apply to people in Massachusetts who get divorced as well.

Does Massachusetts Need Child Custody Reform?

Following the enactment of the new Alimony Reform Law, the Boston Globe has published an editorial calling for child custody reform. Just as the alimony reform has changed the law from pro-female to pro-male, advocates of child custody reform are seeking pro-male changes as well.

The current law for child custody is based on a standard referred to as “The best interests of the child.” This means that a judge will make all custody decisions by considering what is best for the child. A judge has great discretion in making a decision. A court can award primary custody to one parent or shared custody between both parents. Since the custody decision controls the payment of child support, some people fight over custody as a way to fight child support payments. The result is that people who pay child support frequently call for child custody reform.

As a lawyer, I always explain the way that the courts currently approach child custody as trying to preserve the status quo. In most marriages, one spouse is the major wage earner and the other spouse is the primary custodial parent. In our society, with heterosexual couples, the husband is frequently the wage earner and the wife is frequently the custodial parent. If it is good enough for the couple while married, it should be good enough for a Judge. Typically, the custodial decision made by the couple together is the same decision made by a Judge after a contested trial.

A common argument made by the wage earner is that they couple should have shared custody with each parent having the child half of the time. This was the great experiment of the 1980s. The courts generally stopped promoting this as the results were not good for children. Children need consistency in their lives. They seem to do best when they go to school from the same house every day. They do best with the same parent helping them with homework each day. While there are exceptions, most children seem to do best with the traditional custody/visitation schedule. If the parents focus on the best interests of the children, they should want a custody arrangement that is best for the children. If the parents focus on what is best for the wage earning parent, they will look to a different arrangement.

I don't deny that some custody decisions result in bad results for children, I think that overall, the current system works well. I don't think that Massachusetts needs to reform child custody. Perhaps a few tweaks to the system is all that is needed.

What to wear and how to behave in Family Court

What people wear to court and how they behave in the courthouse can make a difference in how the court treats them.   Whether you are in court with a lawyer or as a pro-se litigant, how the court views your appearance and behaviour can affect your case.  This is true for all types of actions from contested divorce to a non-contested adoption.  You always want to make a good impression on the Judge.

Dress respectfully.

The Judge holds your fate in the palm of the Judge's hand. You should act as if you want to please the judge at every opportunity. I frequently describe the way to dress as the way people dress when going to church. It is a formal setting. No shorts, halter tops, or stained or torn clothing. Clothing that is very fashionable may be too revealing for a court setting. Clothes that are too sexy may offend a Judge.

Dress the part.

Don't cry poverty and wear an expensive watch or carry an expensive purse. If you are appearing in court requesting money from your spouse, you don't want to appear as a person who lives beyond their means. Wearing the latest fashions may help your spouse when they claim you are hiding money.

Act respectfully

A court room is a place where people come to argue. They argue with their spouse and with the Judge. However, argument can be respectful and still be effective. Don't interrupt people. Let every one finish what they are saying. Don't raise your voice. If you  your voice, you are likely to hurt your case because the Judge may limit your argument just to prevent you from getting more excited. Don't swear or call your opponent names. It is not uncommon for a judge to stop a person in the middle of an argument to admonish them to respect the other party.

You should address the judge as "Your Honor" or by  their name as in Judge [last name].  In some courts it is acceptable to refer to the Judge as "Judge" but in some courts this is considered disrespectful.  Some courts may also consider it to use the term "sir" or "Ma'am."  In other courts these terms are commonly used.  You should observe prior cases or ask a court officer to learn the customs of that court. 

Avoid Offensive behavior.

Offensive behavior is not limited to words. It includes all behavior in the courthouse. If a problem occurs in the courthouse, a court officer will learn about it and report the incident to the Judge. Remember that a court officer has the power to arrest people who don't behave. A Judge has the power to declare a person in contempt of court for actions done in the building.

While a court is a public building, you should avoid bringing a boy friend or girl friend to court. The presence of this person is likely to be offensive to your spouse and to the Judge.

Avoid drawing attention to yourself in the courthouse. Shut off your cell phone. Don't chew gum, eat food, or read a newspaper while waiting for your case to be called. While the Judge is in the courtroom, you should never talk unless the Judge gives you permission to speak. You don't want the Judge to ask what was so important that you had to speak and disrupt the court's business.

If you have questions about how to prepare and dress for court you should consult an experienced divorce lawyer for advice.

Working with a co-parent.

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 Alimony Law

On March 1, 2012, alimony reform become law in Massachusetts. The new law completely changed 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.