Saturday, August 11, 2018

Massachusetts now allows conditional guilty pleas.

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

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

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

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

Saturday, July 21, 2018

Smart Homes and Divorce

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

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

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

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

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

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

Saturday, July 7, 2018

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

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

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

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

Saturday, June 23, 2018

Don't fall for this alimony trap!

In 2014 I wrote about a child support trap. In this article I described the trap happening when two parents agree to change child support between themselves without court approval. After years of following the out of court agreement, the parent who received less support files a contempt action. Typically the court will enforce the order and order payment of back child support even if the out of court agreement is fair, in writing, and signed by the parties. The out of court agreement is not recognized as valid for any reduced payments made before the filing of the contempt. A similar fact patern was the subject of a case involving alimony.

In the case of Smith v. Smith, Mass. App. Ct. No. 17-P-765 (6/7/2018) the divorce left the Husband paying alimony to the Wife. Over the years, the parties entered into a series of agreements resulting in the Husband paying money for the benefit of the parties' adult children and reducing the amount of alimony paid to the Wife. After a number of years of these reduced payments, the Wife filed a contempt because the payments by the Husband were less than the court order. Unlike cases involving child support, the Husband argued equitable defenses based on “detrimental reliance” called laches or estoppel. The Court did not rule on the detrimental reliance argument. Instead, the Court ruled that alimony can be modified retroactively to consider the agreements of the parties. The retroactive modification must be based on all of the statutory factors that a Judge is require and permitted to consider when making an alimony decision. The Appeals Court sent the case back to the trial judge to make a decision based on the alimony factors. This probably will cause a second trial for the parties but it is likely that the Husband will have some benefit from a retroactive alimony modification. However, if the Husband had a significant increase in income or the Wife had a significant decrease, it is possible that the Husband could end up paying more in alimony than the original order.

The best course of action and the correct cause of action is that if the parties make an agreement to modify alimony or child support that they should seek court approval of the agreement. Massachusetts has a simplified procedure for modifications by agreement. They are typically approved based on the documents only and don't require that the parties physically appear in court.

If the parties don't want to seek court approval then they run the risk of one party paying large sums of money for arrears of alimony or child support. In this instance, they should put their agreement in writing and each party should sign the agreement before a notary public. While no court has approved this, I have a suggestion on how to write the agreement. Massachusetts does allow alimony to be paid “in kind.” This means that alimony can be paid directly to creditors instead of to the ex-spouse. As an example, if the wife has a history of not paying the mortgage, then the court may order the Husband to pay a portion of alimony each month to the mortgage company and the balance to be paid to the Wife. This concept can be applied to out of court agreements. Using the Smith case as an example, I can illustrate my suggestion.

In the Smith case, the Husband was ordered to pay $650.00 per week. One of the reasons for reduction of alimony was that the Husband paid tuition for the daughter's graduate school tuition. The could have written an agreement that state that the two parties agree to pay $400.00 per week for the daughter's tuition with each party paying $200.00 per week. They could agree that the Husband will pay the Wife's $200.00 per week directly to the school and pay the wife the remainder of $450.00 per week. This could be viewed as a payment in kind and may not be considered a contempt. The problem with this is that the Wife would be taxed on the $200.00 per week and the Husband would have a tax deduction.

When considering an agreement to change a child support or alimony award, the best way to proceed is to consult an experienced family law attorney who can draft an agreement and submit it to the court for approval.

Monday, May 28, 2018

Massachusetts Revises Child Support Guidelines

Child support in Massachusetts is controlled by Child Support Guidelines. The Guidelines are a formula approach to child support based on the parents' incomes and certain expenses (health, dental, vision, insurance, child care costs, and other child support obligations.) These guidelines were issued to comply with federal law that mandates the state review the guidelines every four years. In 2017 the state issued updated child support guidelines. Now, less than one year later, Massachusetts is revising the child support guidelines. The “new” guidelines are not a revision of the 2017 guidelines. The new set is merely a correction from mistakes made in the official child support guidelines worksheet.

From almost the instant the 2017 guidelines were announced it was discovered that the worksheet contained errors. This resulted in the state pulling the form from the state website for a period of time. Apparently, the first revisions did not correct all of the problems. The state has issued revisions and a new worksheet that takes effect on June 15, 2018.

In 2017, the guidelines had a different formula when one or more children are 18 or older than for children under 18. The new worksheet corrects problems that occurred when a one or more children were over 18 and other children were under 18 years old. Another correction relates to health care costs when the parents have equal parenting time.

What do these changes mean? In many cases, the calculator will result in the same amount for child support as the 2017 calculator. I expect that for people one or more children over 18 and other children under 18 that the amount of child support will increase. The only way to find out is to use the new calculator to calculate child support with your facts.

People should consult a family law attorney to understand their rights and obligations under the revisions to the Child Support guidelines.

Sunday, February 18, 2018

In Massachusetts you can't sue for fraudulent inducement to marry.

What do you do if you find out that your spouse lied to induce you to marry? What do you do if your spouse married you just to get your money? What do you do if your spouse lied to get you to marry for immigration status? What if you find out your marriage was based on fraud and deceit? One woman, after she discovered that her husband lied about loving her got an annulment and then sued him for damages for the fraud and deceit under a cause of action called “Fraudulent Inducement.”

Fraudulent inducement is a cause of action that occurred in an era when divorce was uncommon and only granted on particular fault grounds. Since Massachusetts created no fault divorce the number of annulments in the state has dropped and it is extremely rare to find a person suing for fraudulent inducement. However, in the recent case of Shea v. Cameron the wife sued her former husband for fraudulent inducement after an annulment. She found out that Fraudulent Inducement is no longer recognized in Massachusetts.

In 1938 Massachusetts enacted laws that abolished three old causes of action relating to marriage: Breach of contract to marry (G.L.c. 207, § 47A), Alienation of affection, and criminal conversation (G.L. C 207,§ 47B). The act which abolished these causes of action was called the “Heart Balm Act.” Heart Balm is a legal phrase that means compensation for emotion injuries to the heart. In other words, money can soothe a broken heart. The legislature did not specifically abolish fraudulent inducement. As a result, Ms. Shea tried to sue using this old cause of action to get money from her former husband. She was undoubtedly surprised when the Court dismissed her action without awarding her any money.

The court held that abolishment of the tort of breach of promise to marry included other related torts such as fraudulent inducement. The Court didn't state that there was no remedy for a scoundrel who lied to induce marriage. The Court held that a judge in a divorce action has discretion to consider fraudulent inducement when rendering a divorce judgment. In this case, Ms. Shea chose annulment over divorce and, in doing so, waived any rights she had for fraudulent inducement to marry.

If you believe that you were inuced to marry by fraud then you should consult a divorce lawyer who can discuss the choice between divorce and annulment.

Monday, February 12, 2018

Should you file for divorce because of the new tax law?

In writing this article I am not encouraging people to file for divorce. In my opinion, the decision to divorce or stay married should be based on a desire to spend the rest of your life with your spouse. It should not be based on financial factors. There are many people who are contemplating divorce and others who are contemplating the optimum time to file for divorce. These are the people that should consider this article.

In December 2017 Congress passed a tax reform law. One of the many changes in this law is that the way that alimony is taxed was changed. Under current law, alimony payments are deductions to taxable income for the payor and taxable as income to the recipient. For judgments after December 31, 2018, that order alimony, the alimony will no longer be deductible as taxable income or taxable as income. It will be treated like child support and have no effect on the taxes of the parties. The change in the law will not change the tax consequences of alimony judgments that enter prior to December 31, 2018.

For people who are contemplating divorce in Massachusetts the following questions should be answered before considering if you should file for divorce quickly:

  1. Am I likely to pay or receive alimony?
  2. If I am likely to pay or receive alimony will the alimony award be so significant that I should be concerned with the tax consequences?
  3. How does the December 31, 2018 deadline apply to Massachusetts divorces?
  4. What happens if a current judgment of alimony is modified or changed?

  1. Am I likely to pay or receive alimony?

In Massachusetts, alimony is ordered when there is a need for spousal support. There are a number of factors that a judge looks at but a simplified view is that there is no need if each spouse earns enough money to support themselves. Alimony is not designed as an income equalizer. It is designed to provide support to a spouse who can't support themselves without additional funds. In an ideal situation, the standard is the ability to maintain the lifestyle that the couple enjoyed before divorce. In many divorces, neither party can maintain the same lifestyle because they are now supporting two households instead of one. In this case, there may be a need when there is a significant difference in income between the parties.

When the court considers alimony the court also considers child support as a factor. If child support is being paid, then alimony should not be ordered unless the combined income of both parties exceeds $250,000.00. In other words, if the combined income is under $250,000.00 then alimony is probably not a possibility. Some judges may order alimony despite the payment of child support when the parent with the greater income is the recipient of child support.

  1. If I am likely to pay or receive alimony will the alimony award be so significant that I should be concerned with the tax consequences?

Of course, one can consider that any increase or decrease in taxes is significant. On the other hand, the amount of alimony paid may be such that parties may decide that it is better to save on attorney fees than to fight for alimony. In Massachusetts, there are limits on both the amount of alimony paid and the length of time that alimony is to be paid.

The amount of alimony ordered in Massachusetts is between 30% and 35% of the difference between the income of the recipient and the payor. Income for alimony purposes does not include capital gain income, dividend income, and interest income from assets evenly divided between the parties and the first $250,000.00 in income when child support is ordered. This means that if there is a $10,000.00 difference in income between the parties the court could order alimony in the amount of $3,000.00 to $3,500.00 per year. If there is $100,000.00 difference in income the court could order alimony in the amount of $30,000.00 to $3,500.00. If child support is being paid and there is a combined income of $260,000.00 then only $10,000.00 should be eligible for alimony determination.

The length of time that alimony may be paid in Massachusetts varies from 50% of the length of the marriage in short term marriages (under 5 years) to lifetime alimony for marriages over 20 years. In very short marriages, it may not be worthwhile for the parties to seek alimony.

  1. How does the December 31, 2018 deadline apply to Massachusetts divorces?

The Tax Reform law effects any divorce or separation instrument executed after December 31, 2018. It appears that any separation agreement or judgment executed prior to December 31, 2018 would be under the existing tax laws with alimony deductible if paid and taxable if received. However, Massachusetts divorces have a three month waiting period after the initial divorce decree enters (called decree nisi) and the divorce judgment becomes final (called decree absolute.) It appears that the IRS has not issued regulations explaining how the effective date is to be applied to Massachusetts divorces. In order to be completely certain that any alimony judgment is under the current tax laws then the decree nisi must enter by October 2, 2018. If the parties are divorcing by an uncontested divorce which is called a 1A divorce then the judge must approve the separation agreement by August 31, 2018.

  1. What happens if a current judgment of alimony is modified or changed?

Any current order of alimony that is modified or changed after December 31, 2018 will lose the current tax deductibility and will be controlled by the tax reform law. This means that even if your current agreement calls for payments to be deductible from taxable income, Federal law will control and you will not be able to deduct alimony payments if modified after this date.

Additional considerations

The change in tax law only effects taxes paid to the United States. Taxes paid to the Commonwealth of Massachusetts will still be deductions to taxable income for the payor and taxable as income to the recipient.

A contested divorce in Massachusetts that does not settle takes about two and a half years to litigate and conclude. This means that you can only rush a divorce to preserve the current tax treatment if it is an uncontested divorce or a contested divorce that settles before August 31, 2018. A contested divorce filed in 2018 won't go to trial in time to beat the December 31, 2018 deadline. Litigation is not the only way that parties can reach an agreement on terminating a marriage. Mediation and other forms of alternate dispute resolution can help the parties reach a settlement.

This is a complicated area of law. If you are considering a divorce and think that alimony is a possibility then you should consult an experienced divorce lawyer to discuss the applicability of the Massachusetts alimony law and if the Tax Reform Law may be an issue for you to consider.

Saturday, November 4, 2017

When asking for a lawyer be clear in your request.

In a case in Louisiana a suspect in a case said the following: “if y’all, this is how I feel, if y’all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer dog cause this is not what’s up.” There seems to be a dispute about the exact verbiage as he later claimed that he said “lawyer, Dawg” and not lawyer dog.

If a person in police custody asks for a lawyer the police are prohibited from asking any questions until a lawyer representing the suspect is present. This right is part of the “Miranda rights” which protect suspects from incriminating due to undue pressure from the police. Upon a request for a lawyer, police must stop all questioning of a suspect. In order to obtain this protection, the request cannot be ambiguios or equivocal. Unless it is a clear request it won't stop the police from questioning the suspect. If the police think a person might be requesting a lawyer instead of thinking that he did request a lawyer then they can question the suspect.

In the Louisiana case the police continued their interrogation and used the suspect's answers to convict him of a crime. At trial and on appeal, his lawyer claimed that he requsted the police get him a lawyer. The courts did not view this as a clear, unequivocable request for a lawyer and allowed his incriminating statements to be used to convict him.

When a person in police custody requests a lawyer they should do so clearly and without conditions. They should not use slang or street language. They should never combine a request for a lawyer with an insult to the police. Anytime someone is questioned by the police they should have a lawyer present.  

Wednesday, September 27, 2017

Massachusetts Child Support Guidelines Address College Expenses (Finally).

Massachusetts child support law allows for payment of child support until age 23 if the child attends an undergraduate college. Judges can also order parents to pay for the cost of college. This has resulted in onerous orders where parents are ordered to pay significant college costs as the cost of private college has skyrocketed past $50,000.00 or $60,000.00 per year. This does not include the cost of weekly child support payments which usually continued until emancipation of the child.

In Massachusetts, court orders for child support are governed by child support guidelines which are reviewed an re-promulgated every four years. The latest version of the Child Support Guidelines took effect on September 15, 2017 and for the first time address college expenses and child support during college.

In the movie Pirates of the Carribean there exists a “Pirate Code.” The code is described as “more what you'd call 'guidelines' than actual rules.” In contrast, the Massachusetts Child Support Guidelines are more like actual rules than guidelines. It seems rare that judges enter an order that does not strictly follow the guidelines. As a result, the new Guidelines which finally address college should give relief to parents who see the skyrocketing cost of college as a path to financial ruin. The new Child Support Guidelines address both weekly child support and college expenses.

Weekly child support.

According to the Guidelines, child support should continue to be paid while a child is in college and living primarily with a parent. However, child support is reduced for a child in college by twenty percent (20%). The child support guidelines have tables to calculate the amount of child support while incorporating this reduction. The tables address various combinations of children in and at home so a family that has three children can calculate the total amount of weekly child support whether is one, two, or three children in college and younger children still fully dependent on the parents. The result is that the child support payments are decreased even if younger children live with the recipient parent.

College expenses

When making an order for payment of post-high school education costs, the court has to consider a number of factors including the cost of the post-secondary education, the child’s aptitudes, the child’s living situation, the available resources of the parents and child, and the availability of financial aid. This means that parents can argue that the educational program is not appropriate for the child as well as arguing that the parents lack resources to pay for college. Litigation may focus on high school performance and attendance and grades in the first year or two of college as a measure of a child's aptitude.

The guidelines state that “[n]o parent shall be ordered to pay an amount in excess of fifty percent of the undergraduate, in-state resident costs of the University of Massachusetts-Amherst, unless the Court enters written findings that a parent has the ability to pay a higher amount.” A judge can still order a parent to pay 100% of college costs at a private college but must make specific findings concerning the parent's ability to pay this amount. Since this is a new concept in Massachusetts Courts there are no cases that help parents understand when they have the ability to pay these increased costs. At this time, it is likely that Judges will focus on parent's net income and net assets rather than on expenses and liabilities. Parties should not be able to manipulate their expenses and liabilities to avoid paying for their children's education. It is easier and simpler for Judge's to assume that parties may be manipulating expenses and liabilities rather than try to understand the necessity of each expense and the history for each liability.

The Guidelines define college costs to limit litigation. College costs are defined as mandatory fees, tuition, and room and board for the University of Massachusetts-Amherst, as set out in the “Published Annual College Costs Before Financial Aid” in the College Board’s Annual Survey of Colleges. The University of Massachusetts-Amherst was designated as the benchmark for maximum orders because it was the flagship, and most expensive, Massachusetts state college when these guidelines became effective. Other expenses such as transportation, books, computers, cell phones, clothes, linens, SAT exams, application fees etc. are not addressed by the child support guidelines. It is logical to assume that these should be paid by the parent with whom the child primarily resides.

While the Child Support Guidelines use UMass Amherst as the benchmark for costs, the cost of the school has to be introduced into evidence at trial. The language of the Child Support Guidelines indicate that Judges should accept a printout of the “Published Annual College Costs Before Financial Aid” in the College Board’s Annual Survey of Colleges as evidence or take judicial notice of the information on the web page. A party intending to introduce this as evidence should provide the opposing side with a copy of the information well in advance of the court hearing as the Judge may refuse to consider the information in the absence of notice to the other side.

College expenses and child support for children attending college can be complicated matters. The new child support guidelines finally address these matters but they still allow Judges to deviate from the Guidelines by making written findings. An experienced divorce lawyer should be able to give individuals guidance on how a Judge is likely to apply the guidelines.

Wednesday, March 15, 2017

Planning for death is more than writing a will.

Planning for your own death is more than writing a will and instructions on how you want doctors to treat you. You should take steps to provide information to your family and heirs to make administration of your estate easier. Anticipating potential problems can avoid problems and reduce the cost of administration of the estate.

Of course, the first steps in planning for your death is creation of an estate plan. The minimum step to be taken is creation of a Will. Some people may also need a trust to administer assets for the benefit of children or other incompetent heirs. When drafting a will you should also consider other end of life instruments such as a power of attorney, health care proxy (in some states a living will), and an anatomical gift document.

One of the most stressful events following a death is planning the funeral and burial. Funeral directors, like other sales people, may use high pressure tactics to increase the cost of the funeral. Funerals can be planned in advance and paid in advance. Cemetery plots can be purchased at any time. Pre-selection of the funeral plans will save money and stress to your loved ones.

Planning for death is similar to planning to evacuate for a hurricane. Gather your important papers and make sure your family knows where to find them. The following list is a start and should be individualized for your needs:
  1. List your date of birth and social security number
  2. If you don't live with relatives you should create a family tree with names and addresses so that the authorities and lawyers can contact the appropriate people.
  3. Your will and trust including the location of the original will
  4. Documents relating to your funeral and cemetery plot
  5. List of professionals that need to be contacted after death such as lawyer, accountant, religious leader, and funeral home
  6. Mortgage documents or rental agreements
  7. Homeowners, renters, and automobile insurance polices
  8. Life insurance policies
  9. List of bank accounts, retirements, and investments accounts. The list should include account numbers, institution names and phone numbers, and identification of any account managers or financial advisors.
  10. Stock certificates
  11. Tax records
  12. Records of money owed to you such as promissory notes or letters acknowledging the debt.
  13. Records of employee benefits owed to you like stock options
  14. List of any debts you owe to others. Include a list of all credit cards and account numbers
  15. The key to any safe-deposit box and the address of the bank.
  16. Appraisals of personal property
  17. Records of government benefits. Social security or veterans benefits may pay for funeral costs
  18. Records of litigation in which you are a party
  19. Marriage certificate and, if applicable, a copy of your divorce decree.
If you have social media accounts or other on-line accounts you may want to give your heirs the ability to post to these accounts to announce your death. While the social media accounts have limits on what can be done by heirs on your account, if you give your heirs access, then they can post consistent with the rules of the account. An example is that Facebook allows heirs to memorialize the account but not post on it as if they were the owner of the account. A list of on-line accounts and passwords can be helpful to your heirs.

All of these documents should be kept in one location and make sure your relatives know where to find the documents. They can be kept in a file cabinet, safe deposit box, or even a box in the basement or attic. Many of these documents can be scanned and stored electronically.

If you take these steps you will make the process of settling your affairs much easier on your survivors.

Saturday, February 25, 2017

Don't give in to peer pressure bullying negotiations

Don't give in to peer pressure bullying negotiations.1

From the time that I started practicing law others have told me do act in a particular way or do things differently using the argument “that's how everybody else does it.” In most instances this advice was accompanied by an explanation based on law, facts, or logic. In many instances I accepted this advice and changed my behavior. If a logical argument exists to do things in a better way then I support the better way. In many instances the advice could be summed up as the difference between how things are taught in school and how they are done in the real world.

In a number of instances other lawyers have presented arguments to do something differently but without any basis in law, fact, or logic. I have always experienced these arguments in the course of trying to negotiate an agreement to resolve litigation. I have never accepted these arguments in the absence of logic. The argument of doing something because everybody else does it is usually a compelling argument. Nobody wants to be different because doing something differently creates a sense of inferiority. However, arguing that a lawyer should do something or include a particular concept in a settlement agreement because “everybody else does it” without logic should be viewed as an act of malpractice. If a lawyer is reluctant to change their position then the last reason they should do so is because all other lawyers do so.

I recently settled a divorce case and the negotiations almost failed because the opposing lawyer wanted to include an anti-bankruptcy clause. When I rejected this the other attorney argued that I should include it because everybody else includes it. I sent the other attorney legal research which indicated that this paragraph would violate bankruptcy law to which the other attorney responded “all other attorneys include it.” She never provided any law or logic to explain why this clause did not violate bankruptcy law. Instead, she repeatedly told me that everybody else does it. She even told me that the Judge will instruct me to include it if we ask the judge. In other words, because she had no basis in law to support her position she resorted to bullying.

This sort of bullying should have no place in legal negotiations. Lawyers should always negotiate in good faith complying with the law as it applies to the facts and the litigation and the ethics that govern lawyers. Arguing that everybody else does it has no place in good faith negotiations.

1  I thank my wife, Sheila g Pransky, M.S.W., L.I.C.S.W. who explained the offensive behavior as “peer pressure bullying.”

Monday, February 20, 2017

Separation agreements can't contract away bankruptcy protections

I recently negotiated a separation agreement in a divorce in which the opposing attorney insisted on inserting a clause that on its face prevented the parties from receiving the benefit of bankruptcy laws if one of them filed a bankruptcy petition in federal court. The clause that she tried to insert was as follows:

"Each Party agrees that neither shall attempt in any way to discharge any obligations contained in this Agreement in bankruptcy proceedings, and that in the event that s/he does, any discharge in bankruptcy for any such obligations shall have no effect upon his/her responsibility as contained in the Agreement. The obligations of the Parties set forth in this Agreement shall survive and supersede any subsequent discharge in bankruptcy. The filing Party shall indemnify and hold harmless the non-filing Party from any and all losses suffered as a result of the bankruptcy proceeding, including costs and legal fees."

In my opinion, this clause is illegal in that it violates federal law and is unethical because it misleads the parties and can cause them to litigate frivolous issues in the event of a bankruptcy filing by a party.

Bankruptcy law is established by federal law. While it may incorporate state law and even look to state law for various elements of the overall bankruptcy scheme, on the issue of a party's ability to file bankruptcy and the effect of filing a bankruptcy petition, these are within the exclusive jurisdiction of federal law. State court judges in family court have no ability to take away a party's right to file bankruptcy or to restrict the effect of such a filing. The parties also lack the power to contract away bankruptcy rights. If an individual could contract away bankruptcy rights then every contract would contain an anti-bankruptcy clause.

In some regards, bankruptcy law protects obligations created by Family Court in a divorce. Child support and alimony are domestic support obligations which are protected categories of debt. Property division does not receive protection under bankruptcy law. The proposed clause does not effect child support or alimony as these are already protected would not be effected by a contract clause that caused separation agreements to survive bankruptcy. This clause is aimed solely at property division.

In the case of In re Kroen, the court addressed a similar clause. The court found that the clause violated bankruptcy law and could not be enforced. The court found that this clause violated public policy. There are are long line of federal cases that hold that an agreement to make contracts non-dischargeable in bankruptcy are void as they all offend the public policy of promoting a fresh start for individual debtors.

Since the proposed clause is illegal and void under bankruptcy law, it can never be given any enforcement in either state or federal court. As such, the only possible purpose of the proposed clause is to make the parties think that property division in a divorce is non-dischargeable under bankruptcy law. In other words, the purpose is to mislead the parties into an incorrect understanding of the law. This is a violation of the ethical rules that lawyers follow.

The Rules of Professional Conduct for Lawyers prohibit lawyers from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation or conduct that is prejudicial to the administration of justice. The proposed clause would mislead parties into thinking that they can file litigation in bankruptcy court and prevent the discharge in bankruptcy of property division obligations. Such a misleading action is conduct that involves misrepresentation. Since it encourages frivolous litigation it is also prejudicial to the administration of justice.

Drafting a separation agreement is a complicated process. People getting divorced should consult an lawyer experienced in family law before signing a separation agreement.

Friday, December 23, 2016

Prenuptial Agreements Should Address All Terminating Events For A Marriage

 Every marriage will come to an end.   Some terminate by divorce and others terminate by death.   Eventually every marriage will end.  

Most people who want Prenuptial Agreements  (also called premarital agreements or prenups) want the agreement for protection in the event of a divorce.   However, a recent case in Massachusetts explained that a well drafted agreement should also address termination by death.  

In the case of Stacy v Stacy the husband and wife had a Prenuptial agreement that had the following language:  "a final and complete settlement of all matters relating to the interest and obligations of each [party] with respect to all future property matters, including but not limited to alimony, support, maintenance, property assignment, and the rights of the parties under G. L. c. 208, § 34, as amended, in the event of a divorce."  Apparently the agreement was silent on what was to happen if a spouse died.   

The husband died and the personal representative of his estate sued his widow over ownership of personal property.  The Appeals Court held that the language of the agreement did not exclude applicability to other events such as death.  This meant that the personal representative and the widow had to try a case to figure out how to interpret the agreement.  Most people who draft prenuptial agreements do so to avoid litigation.  This agreement failed to do so.

A properly drafted prenuptial agreement should specifically address termination of the marriage by both marriage and death.  If the parties don't want to include events other than divorce then the agreement should state so in clear language.   In the Stacy case they could have included a sentence to the effect of "in the event this marriage terminates by death this agreement shall have no effect and shall not decrease the rights of the surviving spouse."

If you are considering a prenuptial agreement you should consult an experienced family law attorney to draft an agreement that includes provisions for termination by death and by divorce.