Tuesday, December 25, 2018

My spouse married me to get a green card. Can I get an annulment?

A green card is a nickname for authorization from the United States Government for an immigrant to live in the United States permanently. In the past, an immigrant who married a U.S. Citizen could apply for permanent residency.1   When a citizen concludes that their spouse married them for the sole purpose of getting the green card and wants nothing to do with the citizen spouse, what can the citizen do? Can the citizen get out of the marriage?

An annulment is a judicial decree that that a marriage never existed. It is commonly thought that an annulment is easier to get than a divorce and less can't result in property division or alimony. However, in Massachusetts, this is not correct. An annulment can take as long as a divorce to obtain through the courts. In an annulment, a judge can award alimony, divide property, determine custody of children, and award child support. In other words, an annulment in Massachusetts is the same as a divorce except that it is much harder to get.

Massachusetts has no fault divorce which means that there is no defense to a divorce action. If one party says that want a divorce then that proves that the marriage is irretrievably broken down. That is not the case in an annulment. There is no such thing as a no-fault annulment. Every annulment must be based on specific grounds. The other spouse can contest the grounds and a judge has discretion and may find that the facts don't prove that an annulment should be granted. The result is that parties can go through a trial for an annulment and still be married after the trial. This would never happen in a divorce.

One of the reasons for obtaining an annulment is fraud. In Massachusetts, not all fraud arises to the level of obtaining an annulment. The fraud must go the “essence of the marriage.” This means that the fraud must be of such that it addresses one of the essential reasons people get married. These reasons include a desire to cohabit, have sexual intercourse, and to have children. Other reasons could go to the essence of the marriage but don't have to.

Usually, if a person gets married to obtain a green card there is no discussion about green cards. As such, there is no false representation constituting fraud. Failure to disclose something is considered a fraudulent concealment. Fraudulent concealment is not a basis for an annulment unless the concealment goes to the essence of the marriage. Failing to disclose an intent to not cohabit is sufficient for an annulment. Failing to mention that the marriage is to obtain a green card does not. In Massachusetts, failure to disclose an intent to get married to get a green card, without other facts, is not sufficient to get an annulment. However, intention to get the green card with other facts may be sufficient for an annulment.  If the parties get married, live together, have sexual intercourse and after a short period separate then it may be very difficult to show that the immigrant spouse did not intend to participate in a marriage when they went through the wedding ceremony.

If you got married and want out of the marriage because your spouse wanted to get a green card you should get a divorce and not an annulment. If you want to consider an annulment you should consult an experienced family law attorney who can advise you of your rights.

1Alan Pransky does not practice immigration law and does not know the current rules regarding immigrant spouses and green card applications. Anybody interested in obtaining a green card should consult an immigration lawyer.

Monday, December 17, 2018

Has your spouse run away?

An entertainment company is creating a documentary TV series for a cable network about individuals with a significant other (a spouse OR a long-term boyfriend/ girlfriend) who has run away and is no longer in touch (ie: "disappeared" or "gone missing"). The company is looking for people who suffered a victimization of this nature. The show seems to be based on selecting individuals an then using experts from the TV series, including private investigators, to locate the missing spouse or partner. Anyone in this situation who is interested in having their story in the show can contact melissa.casting@gmail.com
Include: Full name, age, phone#, current city& state, spouse's name, number of years married, photo of the two of you together and brief description of when/ how they disappeared.

Of course, people can get divorced even if their spouse has disappeared. The law would not sentence someone to perpetual marriage merely because the spouse chose to disappear. Service of legal process can be accomplished by other methods such as by publication, relatives, or even social media. While a person can get divorced with a missing spouse it doesn't mean that they can recover assets, alimony, or child support. The missing person may have to be located before money can be collected. Experienced family law attorneys know how to locate missing people. While no attorney will have success in all missing person cases, they will be able to find some people. They will also know what legal action to take after a person is located.

Saturday, November 3, 2018

In Massachusetts the spirit of restraining orders must be obeyed as well as the letter of the order.

Until recently I advised clients that they could not be convicted of violation of a restraining order in Massachusetts unless three elements were proven:
1.  A clear order
2. A clear violation; and
3.  An ability to comply with the order.

The first two elements are fairly clear. The third element covers situations like a chance encounter in a store or a restaurant. A chance encounter should not result in criminal conviction. This still seems to be the status of the law.  However, a series of recent cases changed the element of a clear order. Now, a person subject to a restraining order must obey the clear language of the order as well as the intent of the order.

In the case of Commonwealth v Telcinord a woman was ordered to stay away from her husband and to stay 50 feet away from him. She followed him in her car as he drove his car. Presumably she stayed the requisite 50 feet away. She was convicted of violating the restraining order because following in her car was a violation of the order to stay away. The defendant's behavior by the way she drove her car indicated that she wanted her husband to know she was following him and that she intended to confront him.

It appears that engaging in behavior that is intended to cause the protected person to become aware of the whereabouts of the defendant is a violation of the restraining order. A restraining order is intended to insulate the protected person from the presence of the defendant or from any form of unauthorized contact. Any intentional contact that causes the protected person to see the defendant may be considered to be a violation of the order.

In Commonwealth v Goldman, the Court explained what “stay away” in a restraining order means. Stay away
prohibits a defendant from (1) crossing the residence's property line, (2) engaging in conduct that intrudes directly into the residence, and (3) coming within sufficient proximity to the property line that he would be able to abuse, contact, or harass a protected person if that person were on the property or entering or leaving it. A protected person need not actually be present for such a violation of the order to occur.

Stay away can no longer be interpreted as a set distance. It is a concept that the person should stay far enough away from the protected person and their home so that the protected person can go about their activities without coming into contact with the Defendant. Truly accidental contact won't be a crime but contact in the vicinity of a protected person's home or work is likely to result in a conviction for violation of a restraining order.

If you are subject to a restraining order I recommend that you contact a lawyer familiar with restraining orders so that you understand what you are permitted to do and what you are not permitted to do.

Monday, October 1, 2018

October is National Bullying Prevention Month

National Bullying Prevention Month is an annual campaign to unites communities nationwide to educate and raise awareness of bullying prevention. Bullying can occur at any age and among any group in society. Children are the usual victims of bullying. If bullying occurs in school it can continue for years as the same group of children interact in school year after year. As a result, the bullying can continue year after year. Childhood bullying is frequently dismissed as insignificant or as normal child activities.

Bullying can be devastating to victims. Nobody likes to be a victim. When the bullying continues for a prolonged period, it can destroy self-esteem, create depression, and anxiety. In extreme cases, the victims may attempt suicide.

Pacer.org created National Bullying Awareness Month to combat bullying through community partnerships and resources. Their goal is to decrease bullying by education and support.

If you are a victim of bullying, you need to report the conduct to parents, school, and even police. Depending on the specific actions, the bullying may be criminal. There are resources on the Pacer web site for victims of bullying. Bullying should never be tolerated.

Saturday, August 11, 2018

Massachusetts 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.