Saturday, March 30, 2013

Does Massachusetts have a new standard for modification of child support?

A recent case in Massachusetts, Morales v. Morales, decided March 12, 2013 SJC # 11104 is described as changing the standard for modification of child support. While this is clearly an important case, in my opinion, it does not change the law.
The traditional law of modification for child support is that a modification can be granted when there exists a material and substantial change of circumstances from the prior court order. There have been many court decisions interpreting this standard. In 1998, Massachusetts changed G.L. c. 208, § 28
which provides that a child support order shall be modified "if there is an inconsistency between the amount of the existing order and the amount that would result from application of the child support guidelines." In the Morales case, the Court describes G.L. c. 208, § 28 as establishing a different standard for a modification, the inconsistency standard. I have always interpreted this law as stating that an inconsistency from the existing guidelines constituted a material change of circumstances. The result is the same, child support can and should be modified any time there is a variance from the order and the guidelines.

In the Morales case, the Court also addressed another aspect of the child support guidelines: overtime. In this case, the trial judge announced that she does not include overtime in the child support calculations. The child support guidelines give the judge ability to disregard overtime after considering numerous factors. However, this trial Judge never considered overtime. On appeal, the court found that the Judge cannot approach the child support guidelines with an inflexible rule on consideration of overtime. The Judge must approach as a neutral and give due consideration to the factors as stated in the child support guidelines.

My interpretation of this case is as follows:

  1. The child support guidelines are not guidelines. They are a set of rules that must be followed.
  2. Any time that there is a variance from current calculations under the child support guidelines, there should be a modification. Hopefully, parents will exchange financial information on a regular basis and make the adjustments without resorting to litigation.
  3. People who pay child support (payors) should not make deals to pay different sums than dictated by the child support guidelines. As an example, assume the parties agree to pay reduced child support in exchange for a lump sum payment. This could be approved at the time of a divorce. However, what happens one year later when the recipient of the support seeks an increase to comply with the current child support guidelines? It appears that the payor could end up paying the current child support guidelines even though they made a deal to pay less. The lesson is that it is very risky to stray from the guidelines.
  4. It is reversable error for a Judge to state that they always approach the child support guidelines in a particular way. Judges may say this to encourage settlement. It appears that Judges should avoid making statements of this nature. In all probability, Judges will continue to have inflexible approaches to the application of the guidelines. However, they will probably stop talking about their approaches and just make rulings after hearing the evidence.
Despite this opinion which clarifies the interpretation of the child support guidelines, people will continue to litigate child support. Some people will try to hide their income. Some people will not disclose their income in advance of litigation. Some people will refuse to consider sources of income other than from their primary work. In all of these cases, litigation is likely to occur. It would be best if people consulted family law attorneys before making mistakes of this nature.

Sunday, March 10, 2013

Who gets the engagement ring when the wedding is called off?

In Massachusetts, an engagement ring is usually considered a conditional gift: given on the condition that the couple gets married. The normal expectation is that if the engagement is broken and the wedding doesn't occur, then the ring will be returned. However, it doesn't always work out this way. In the event a dispute about an engagement ring makes its way to court, the court will look at the circumstances surrounding the giving of the ring and the circumstances surrounding the breakup of the couple.

Some people give the ring on an important day in the calendar. An engagement ring given on a birthday or on Christmas can be a combination of a unconditional gift and a conditional gift. If a court determines that the ring was a birthday gift, then it is not conditional and should not be returned. This concept should encourage giving the ring on a day that is only special because the engagement occurs on that day.

The way in which the couple breaks up can decide who gets the ring. If it is a mutual decision to not get married, then the ring should be returned as the wedding did not occur. However, if one of the parties misbehaves and this causes the break up, then it is a different result. The party who is at fault for the end of the relationship can't get the ring. If there is fault such as an affair, physical abuse, or other wrongful conduct, then the ring will go to the party without fault. If neither party is at fault, then the ring is returned to the donor.

The result is different after the marriage if a divorce occurs. Once the marriage occurs, the condition of the conditional gift has been met and the recipient of the ring gets to keep the ring. Unlike an engagement, fault in the termination of the marriage does not effect ownership of the engagement ring. Once the condition of the marriage is met, the gift is complete. This doesn't mean that the ring can never be returned. In a divorce in Massachusetts, a divorce judge has great discretion in property division. The judge's power extends to almost all property including the engagement ring. This means that a judge can change ownership of the ring to fairly and equitably divide all property owned by the couple. As a general rule, a judge won't look to change ownership of a ring unless the ring has significant value. In most divorces, the judge will let the recipient keep the ring.

If you are getting divorced an experienced divorce lawyer can advise you on property division including the manner to treat the engagement ring.

Saturday, March 2, 2013

Why the Degeneres brief deserves our attention.

Ellen Degeneres, the TV personality, claims that she filed a brief in the Supreme Court in the potentially landmark case involving California's Proposition 8 and gay rights.. This action deserves the attention of the nation. That Ellen supports gay rights should not be a surprise. However, to my knowledge, this is the first time that a “brief” has been filed in the manner chosen by Ellen. She filed the brief on Facebook. Nobody has done this before.

Of course, the brief filed by Ellen is not a brief at all. It is a letter to the Supreme Court published on the internet. The Supreme Court has rules on how to file briefs. Ellen failed to comply with any of these rules. According to the rules of the Supreme Court, the parties to the litigation can file briefs. Other parties, can file briefs on a case but only with permission of the Supreme Court. Ellen had no such permission. She is merely an ordinary citizen who published her position on the issue on the internet. However, while she is only a citizen, she is also a famous personality.

Traditional theory teaches that Judges don't consider outside influences when deciding cases. It is clear that the Supreme Court conducts their own social and factual research. This was demonstrated recently when Justice Roberts mentioned facts about voting rights that were not known by the litigants. The reason that this action by Ellen is worth watching is to see if the Supreme Court pays attention to her letter.

As society changes, I hope that government changes with society. Clearly, the technological changes in the internet and social media can change the way the courts function. Should the Supreme Court or any other Court allow individuals the right to right “briefs” on pending cases by publishing them on the internet? This case and Ellen's “brief” may change the way the courts function.

On the subject of gay rights, Ellen's brief isn't really a brief at all. It is a short letter that states that her gay marriage doesn't hurt anybody. She is denied rights for no reason except she is different. She urges the Judges to rule that gay marriage should be treated the same as any other marriage. Based on substance, this is a very poor brief. However, the unique publication method could make this brief one of the most important briefs filed in the Supreme Court.