Sunday, December 30, 2012

In Massachusetts, how are family pets typically handled during a separation/divorce?

File:Rassehund Briard.jpgPets are personal property and are treated as such by the courts in divorces or actions for separate support. In most cases, animals are property with no value. However, if the parties treat the pets as children, a Judge will usually treat them in the same manner. There is no formula for awarding possession of pets. Usually, a Judge should encourage the parties to work it out themselves. However, unlike children, custody of pets should not be based on a best interest standard. This means that the Judge won't make a decision of what is best for the animal. While we have animal cruelty laws which a Judge should consider, it is unlikely that either spouse would abuse the animal.

If there are children, a Judge would try to award ownership of the animals to the parent who has primary custody of the children. Usually, an argument is made that the children would be emotionally disturbed if they couldn't live with the children.

A Judge may consider other logical arguments as to awarding ownership of an animal. If the pet was a gift to one spouse or was owned by one spouse before marriage, then these factors may be the basis for deciding ownership. As pets are usually viewed as having no value, a Judge would look to some other logical basis for awarding ownership.

Unlike other property, a Judge may consider visitation rights for the parent who is not awarded the pet. Such visitation may satisfy the parties who acknowledge that both spouses care for the animal. An experienced divorce lawyer can assist in negotiations concerning pets and settling divorces.

Tuesday, December 25, 2012

Can you spy on your spouse with technology?

Since the creation of the institution of marriage, some people have suspected their spouse of cheating. One of the natural instincts following such suspicions is to try to prove the adultery. An age old method of such proof is to hire a private investigator to follow the spouse and obtain proof. This is a costly undertaking. If the investigator fails to find proof, there is still doubt as the spouse may commit adultery on a day when the investigator wasn't following. Today, some people turn to technology to confirm the suspicions.

One of the easiest ways to spy on the spouse is to merely look at the spouse's computer and cellphone. Looking at emails, text messages, or listening to voice mails may give the confirmation desired. Sometimes the spouse looks at the computer or cellphone innocently and learns some information. An example is that the spouse's cellphone may be sitting on a table when it rings and a picture of the paramour appears. Such accidental discoveries are not spying as the term requires intentional conduct. The intentional perusal of the spouses' cellphone without permission is spying and may be illegal. However, some spying may be permitted as the entire family may share one computer or cellphone. Spying is not permitted when a spouse has exclusive use of the electronic device. In fact, such spying may be criminal conduct that can be punished by fine or imprisonment.

It is clearly criminal in Massachusetts to record the voice of any person without that person's permission. G.L. c. 272, § 99. If two people have a conversation, both must consent before the conversation can be recorded. Producing a tape in a divorce trial of a conversation that was secretly recorded may be a greater problem for the spouse who made the recording than the spouse who was recorded.

Installing spyware on a computer to capture keystrokes can also be a criminal act. There are at least three state laws that may apply to such spyware. G.L. c. 266, § 120F prohibits unauthorized access of a computer system. Spyware on a spouse's exclusive computer should be considered a violation of this statute invoking criminal penalties. G.L. c. 272, § 99 prohibits the interception of wire communications as well a oral communications. Although no reported case has attempted to apply this law to computer spyware,  the purposes of the law indicate that it should include such communications. Furthermore, the law prohibits owning a device that is capable of such interception. Computer spyware has no purpose other than to intercept computer communications. As such, possession of such software is probably a crime in Massachusetts. The third criminal law that can apply to computer spyware is the stalking law: G.L. c. 265, § 43. This law punishes a pattern of conduct or series of acts of “spying” on a person combined with a threat of harm. While not every marriage breakup has threats, they frequently do. As a result, an argument can be made that computer spyware combined with a threat of harm meets the definition of stalking. Similarly, using a GPS device to track a spouse may be stalking or even an unathorized use of a computer if the GPS device is found in the spouse's cellphone or auto anti-theft device.

Spying destroys trust and can destroy the marriage even if adultery ne­ver occurred. If the spying fails to prove cheating, the innocent spouse may feel the marriage is over because of the lack of trust. A better way to address suspected adultery is to do so in the context of marriage counseling. Of course, therapy is designed to improve the marriage and not obtain evidence of adultery for a court proceeding.

As a general rule, proof of adultery does not play a significant factor in a divorce proceeding. While Massachusetts Judges will listen to proof of adultery, they seldom use evidence of adultery as a factor in deciding how to terminate a marriage. If a party attempts to prove adultery by evidence obtained by spying on the spouse, most judges will exclude the evidence and not consider the proof. Judges refuse to consider such material as doing so would encourage such illegal acts in the future.

The result of such spying may be forcing a break up of the marriage, criminal charges against the person who obtained the evidence, and failure to use the evidence in court. In addition, obtaining actual proof of infidelity may cause far more emotional distress than mere suspicion.

Understanding federal and state is essential to knowing your rights. If your marriage is having difficulties you should consult an experienced lawyer before you start spying on your spouse. A lawyer can help you understand your rights and options before you make a mistake and commit a criminal act.

Sunday, December 9, 2012

Is my divorce (or paternity) judgment final for child custody and child support?

In almost all court judgments, once the judgment is final it can't be changed. This rule does not apply to issues involving child welfare and support. If there is new conduct or events that affect the best interests of a child, the Court has the power to change the judgment. Provisions relating to child custody, visitation and support are almost always modifiable. If there is a material change in circumstances, then the parties may consider seeking a modification.   Assuming that you prove the change in circumstances then the court must determine if the best interests of the child mandates a change in the judgment.  In Massachusetts, a change of circumstances in child support may be the passage of three years since the last judgment of support entered.

While child issues can change, the court won't consider evidence that occurred prior to the entry of the earlier judgment. A modification is not an excuse to try the divorce again. There must be a material change of circumstances since the last judgment.

Until the Court changes the provisions of the earlier judgment, the parties must strictly follow the terms of the judgment. While the judgment may allow for the parties to change the terms of the judgment by agreement, such an agreement is not enforceable by a contempt proceeding unless the new terms were approved by a Judge. Massachusetts Courts have a simplified procedure for court approval of a modification by agreement of the parties. The parties don't have the power to change the amount of child support by agreement without Court approval.

If you are considering seeking a change in the child-related issues from a prior judgment, you should consult an experienced family law attorney who can help you understand if you can and should seek a modification of the judgment.

Saturday, December 1, 2012

How to make a divorce less stressful for children.

Divorce is one of the most stressful events in a person's life. The stress level is comparable to the death of a spouse. It is just as stressful for children of a divorcing couple. Children don't always understand divorce and its causes. They interpret the events through a filter of a lack of understanding. Even if the causes of the divorce are explained to children, they may blame themselves for their parents separation. Here are some suggestions on how to help children through this difficult time:

  1. Therapy—Find a therapist that is experienced with children of divorcing parents. Children can benefit from having a person they can talk with and not worry about using the information against a parent. A professional may help a child understand the events and address any guilt the child may have.
  2. Avoid Divorce Discussions—A divorce can be all consuming to parents. It is natural to want to discuss this with friends and relatives. However, children seem to hear all conversations and telephone calls that occur in the house when they are present. Even when the children are suppose to be asleep, they seem to overhear conversations. Take the conversations out of the house or make sure that the children are out of the house. If you are holding discussions with your spouse, make a date to meet at a coffee shop. This prevents the children from hearing and the public meeting place may cause the spouse to put on “public manners.” When I call clients to discuss divorce issues, I frequently start by asking if it is a good time to talk.
  3. Behave calmly--Children sense when their parents suffer from stress and anger. If you can, remain calm and collected when in the presence of the children. The calmer you are, the more reassuring you are to the children.
  4. Avoid conflict—Fighting with your spouse creates stress for the children. The children won't understand the fight and won't know what to do. They may feel forced to choose between the two parents. Try to be polite when talking to your spouse. Keep your fights to appropriate arenas like email, therapists, and court.
  5. Talk to your children—Tell them that they are not responsible for the divorce. Explain that this is strictly between the adults and the reasons are adult issues that you won't discuss with the children. Explain to them how the custody and visitation will work. Reaffirm that they won't be losing either parent. However, not all issues should be discussed with the children. Avoid talking to the children about the financial issues in the divorce.
  6. Seek consistency and stability—Children thrive when they know what to expect and what is expected of them. To the extent possible, try to avoid disrupting children's lives. Work out a shared parenting agreement that takes into account the child's needs and desires while giving both parents reasonable parenting time. Be flexible to accommodate events that are important to all parties including the children.
  7. Don't put the children in the middle.-- Avoid sending messages or passing items through the children. When you pass messages or support checks through the children, the children become associated with the message. A person who resents weekly child support blames the children for the weekly financial drain. Use email and telephones for messages. Pay support obligations by mail or bank by check so that there is no face to face exchange. If the child delivers an unwelcome message, there is no ability to respond and argue. Email and telephone both allow responses.
  8. Agree on house rules—One of the first things that children learn in a separated house is how to play one parent against the other. They manipulate to change the rules of the house. Things like bedtimes and homework suddenly are more flexible. Children will try to sell their affection for bending of the rules. Don't give in to the temptation. Avoid being the fun parent as your primary focus. Make sure both parents agree on the rules of the house and don't change them without consulting the other parent.

Divorce has a major impact on children's lives. Both parents should cooperate to reduce the stress on the children. The joint goal should be to raise the children to be productive adults who can have significant relationships as an adult. Don't sacrifice the long term goal for short term rewards. An experienced divorce attorney can help guide when raising children in a divorce.

Saturday, November 24, 2012

Do you need a Sexting restraining order?

Sexting is a term used to describe the act of sending sexually explicit messages or photographs, primarily between mobile phones.”  According to a study from the University of Texas Medical Branch, over 30% of all people between ages 18 and 25 have exchanged naked pictures. Although this practice is not limited to young people, it is fair to assume that a significant number of young married couples have exchanged naked pictures. Some of these people are bound to get divorced. What will they do with these naked pictures of their spouse in the heat of a highly contested divorce battle?

Some people try to hurt their spouse any way they can. Naked pictures can create a unique opportunity to inflict pain on their partner. Photos can be uploaded to the internet and once they are online it is impossible to remove them. Knowing about the online posting may cause sever emotional distress to the victim of this posting. Children of the spouse may discover the pictures and also have emotional distress. A potential employer may find the pictures with a simple Google search. This may negatively affect the spouse's employment potential.

The harm that can be inflicted can be seen by looking at the many celebrities who have been exposed as their Sexting pictures have made their way to the internet. Perhaps the most famous is Anthony Weiner who resigned as a congressman after his Sexting pictures were distributed. The problems that the celebrities suffer may pale next to the prospect of not finding a job because a vengeful spouse posted pictures on the internet.

If you are getting divorced and your spouse has Sexting pictures then you should consider filing an ex-parte motion to restrain the distribution, posting online, uploading to the internet, transferring, or reproducing any pictures or video of the client in which the client is naked or partially naked. An experienced Massachusetts divorce lawyer can help you get a Sexting restraining order which could protect you from the harm of posting naked pictures online.

Wednesday, November 14, 2012

Massachusetts has a law protecting animals from domestic abuse

On October 31, 2012, Massachusetts enacted a new law to protect domesticated animals from domestic abuse. In order to obtain an order under this new law, there must also be a protective order for the protection of people. Under this law, the court can order possession and care of a domesticated animal or issue a restraining order to prevent abuse to the animal. This law elevates animals from property to the status of a member of the family. Violation of the order is a criminal act.

I question the need for this new law as I have had cases in which Judges have issued orders to protect animals. When the Judges have issued orders of this nature, nobody questioned if the Court had the power to make the orders. The Judges never hesitated before making protective orders. Nevertheless, the Massachusetts legislature decided that Judges in Massachusetts need an explicit grant of power to protect animals. In my opinion, the only difference this new law makes is that we now have an official form to obtain a restraining order to protect animals. While lawyers may not have needed this new law, now people who assist pro-se litigants in obtaining restraining orders should also understand that animals can and should be protected.   

Monday, October 29, 2012

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.

Sunday, September 23, 2012

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.

Wednesday, September 19, 2012

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.

Sunday, July 29, 2012

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.

Monday, June 4, 2012

Facebook and Divorce

Facebook Logo on Monitor.jpgFacebook 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.

Monday, May 28, 2012

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.

Sunday, May 13, 2012

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.