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.

The court didn't give me custody of my children. Am I a bad parent?

In most custody cases, both parents are good parents who can take care of the children. A judge has to decide custody between two good choices. In most Massachusetts custody battles, custody is not decided on the basis that one parent is bad. The standard applied by judges is known as the best interests of the child standard. In other words, the judge has to decide which custody arrangement is better for the children.

Judges will frequently look at the following questions when considering custody:

• When the parties were together who was the primary custodial parent?
• Which parent has bonded better with the children?
• Which parent works more hours?
• Which parent prepares food, cleans the house, bathes the children, puts them to bed?
• Which parent takes time off from work for a sick child or doctor's appointments?
• Once the parties have separated, do both parents have adequate housing for the children and sufficient plans to care for the children?

There are other facts that a judge may consider.

After a judge considers these factors and others, the judge will then make a decision about custody. Frequently the judge has to choose between two good parents. Not receiving custody does not reflect anything negative about your parenting skills. Custody battles can be very complicated. An experienced divorce lawyer should be consulted before you engage in a custody dispute.

Can an out of state divorce decree be modified by a Massachusetts Court?

In a recent case, Cohen v. Cohen, the Massachusetts Supreme Judicial Court ruled that Massachusetts had no jurisdiction to modify a California divorce decree to order college expenses and child support. This case is easily misunderstood as the decision is limited to a particular type of case.

In the Cohen case, the parties were divorced in California and the Wife and child continued to live in California. The husband moved to Massachusetts. This meant that the Wife had to use the Massachusetts Courts to enforce the California divorce judgment. She could have hired a Massachusetts lawyer to collect her child support or she could have used the California child support agency to collect the money. She selected the California child support agency.

Every state has an agency which collects child support for residents of the state. In the Cohen case, the California agency initiated an interstate child support collection action under the Uniform Interstate Family Support Act (UIFSA.) Both Massachusetts and California (and probably all other states) have enacted UIFSA into their state law. While it was California in this case it could have been any state. Under UIFSA, California asked Massachusetts to file a case to enforce the California divorce decree and California law. An action was filed in Massachusetts by the Department of Revenue (DOR.) to enforce the judgment. While the Massachusetts Court had all of the powers under Massachusetts law to enforce the judgment, it had no power to modify the judgment. In the Cohen case, the divorce decree made no provisions for college education or medical bills of the child. The Massachusetts Court was unable to make any orders relating to payment of college education or medical bills.

This case doesn't mean that the Wife in the Cohen case could never ask a Massachusetts Court to modify the California Judgment. It only means that she couldn't modify under UIFSA. She could have hired a Massachusetts lawyer to enforce the California decree and modify the judgment. Had she proceeded in this manner, she would have enabled the Massachusetts Court to use all of its powers and authority including the power to modify the California judgment. If the Wife had filed an action in Massachusetts it would have been very expensive. She would have had to pay for a Massachusetts lawyer instead of having DOR represent her for free. She would have had to travel to Massachusetts for the trial and possibly for a pre-trial conference instead of staying in California. Of course, there is no guarantee that a Massachusetts court would apply Massachusetts law and modify the judgment. Instead, the court could have ruled that the Wife must file a modification in California or that Massachusetts would apply California law. As a general rule, using UIFSA for interstate child support enforcement is a better choice.

Interstate child support enforcement is a complicated area of law. If you have a case that crosses state lines you should consult an experienced family law attorney.

What can a parent do when they are the victim of parental alienation?

There is no perfect answer to this question. As long as one parent keeps fueling the alienation flames, the alienation will continue. Every case of parental alienation is different but the cause is the same. One parent uses the children as weapons to hurt the other parent. In essence, the parent is sacrificing the children's well being to fulfill their own selfish desires. The following suggestions may make no difference or may solve the problem.

1. Keep a diary. This should detail all of your attempts to maintain a relationship with the children and the children's responses. Whenever possible, backup the diary with documents that corroborate the information you note. Emails, telephone bills, and receipts from stores and restaurants should be preserved. Use an email program that documents when the emails are read by the recipient.
   
2. Take advantage of all contacts permitted by the court. Don't miss any visits. Make telephone calls or Skype calls every day if allowed by the court. Use texting to communicate with the children but not excessively. Send gifts or cards for every occasion possible. Cards are created for many holidays such as New Years, Valentine's Day, Independence Day, and many others. Make sure you have copies of the cards and enter the mailing of the cards and the gifts in your diary. Of course, make sure you send gifts for major holidays or events like birthdays or Christmas.
   
3. Attend every event in your child's life. Don't miss a dance recital, a little league, a concert, or any other event in which your child is a participant. Contact the school and obtain information about events, parent teacher conferences, and make sure the school has your contact information. Do the same for the child's pediatrician, dentist, and other doctors. Make sure you are on time for each event.
   
4. Do everything that the court orders. If the court orders counseling, make sure you go to counseling. If the court orders drug tests, make sure you avoid using drugs and take every test ordered. Continue counseling and drug tests even if the children or the other parent stop attending.
   
5. Take a parenting class. You may be the best parent in the world but the court will be impressed by your efforts to improve yourself.
   
6. Never ever use physical force to discipline your children. The law may permit use of reasonable force but you are under a microscope and can't afford the luxury of using physical force. The exception is that you may have to restrain (but not hit) a child to prevent harm to another child, yourself, or someone else.
   
7. Avoid discussions with your child about the alienation, child support, or any issue you have with the other parent. Make sure the children can't hear when you have discussions with other people about these matters.
   
8. Be careful about use of social media. You should assume that everything you post on social media will be reported to the Court. Never say anything critical or negative about your children, the other parent, the attorneys, or the Court. Social media can be used to make positive statements about the children but do so sparingly. Don't comment on every posting by your children. It will make you look like a stalker.
   
9. Tell your children that you love them. Tell them this at the end of every phone call and every visit. Don't overdo this. Once a day is fine. Four times a day makes you look crazy. Don't ask the children to respond in kind. Pressuring the children for affection is certain to hurt you.
   
10. Be persistent and consistent in your efforts to maintain your relationship with your children. Don't give up hope no matter how frustrating it becomes.
    
11. Retain a family law attorney and regularly discuss the parental alienation and your efforts to maintain the relationship. In many cases, only court action can stop the abuse to the children. An experienced family law attorney should be able to advise you about when to resort to the courts. Like everything else in regards to parental alienation, it may take a number of court actions before you start to see results.  In the most severe cases of parental alienation the court can  change custody.
    

What rights do gay spouses have in custody battles?



For centuries, the law has struggled with issues surrounding rights of spouses in custody battles.  Of course, until recently, all of these battles have involved heterosexual couples. When a married woman gives birth, who is the father? What rights does a married man have to custody or visitation of young children? What rights does a husband have when children are conceived in a marriage through artificial insemination. All of these questions have been asked and answered for heterosexual couples. Now the same questions are being raised for same-gender couple who are getting divorced.

One of the first cases in Massachusetts to look at some of these issues for same-gender marriages has answered one of these questions. In the case of Della Carte v.Ramirez, question was raised of the rights of the non-biological parent in regards to a child born to the spouse through artificial insemination. The biological mother argued that her spouse had no rights to her child because she was not the father and had no biological connection and that the artificial insemination law, G.L.c. 46, § 4B provided no rights to the spouse because it used language about a child conceived with the “husband's” consent. In this case, the non-biological spouse was granted joint custody over the minor child. In doing so, the court made a ruling that the spouse was the legal parent of the child.

The result in this case established that for questions regarding paternity, custody, and visitation, there should be no difference between the law for heterosexual couples and the law for same-gender couples. In Massachusetts, marriage creates the same rights regardless of the gender make-up of the couple. Laws that use language that create rights for husbands should be interpreted to mean spouses. For Massachusetts, family court disputes should make no distinction based on the gender of the parties. Custody and paternity decisions should be based on concepts such as the best interests of the children without regard to the gender of the parents.

Paternity, custody and visitation in Massachusetts are complicated issues. An experienced family lawattorney can help parties understand the proper issues to raise in custody proceedings.   

My spouse cheated on me, can I sue for damages?

For most people, marriage means that the two spouses will not have sexual relations with any person except their spouse. Unfortunately, sometimes this right of exclusive sexual access is violated. When this occurs, there is a desire on the part of the innocent spouse to seek revenge against the third party who had sex with their spouse. Massachusetts law used to allow lawsuits for the harm to the marriage caused by the third party. The Common Law which was derived from old English law allowed lawsuits for “alienation of affection” and “criminal conversation.”

The tort of criminal conversation allowed the wronged spouse to sue the paramour for violation of the right of exclusive sexual access from the marriage. In other words, it was a lawsuit against the third party for sex with their spouse. The tort of alienation of affection was a lawsuit against the paramour for causing their spouse to stop having affections within the marriage. This usually resulted in a divorce as a result of the adultery. It was not uncommon for a lawsuit to allege both alienation of affection and criminal conversation.

In Massachusetts, when cheating occurs in a marriage, the wronged party can no longer sue for damages. Massachusetts General Laws Chapter 207, Section 47B prohibits lawsuits for both alienation of affection and criminal conversation. As a result, when cheating occurs in a marriage, the only recourse through the courts is an action for divorce against the spouse.

Cheating in a marriage can be devastating to the innocent spouse. Some couples manage to save their marriage after an affair. Others separate and end the marriage by divorce. When cheating occurs in a marriage, both spouses should consult an experienced family law attorney to determine their rights and understand divorce. Many people need to understand their rights in a divorce before deciding if they want to save their marriage.

How to prepare for a divorce.

Some people make the decision to divorce in an instant. Others find the decision to divorce is a long process that percolates over time. If you are a person who is thinking about divorce and moving towards ending your marriage, then the following actions can help you prepare for divorce and to make the decision about your future:

1. Consult a family law attorney.
   A lawyer can discuss the specifics of your case with you and give you advice on preparing for a divorce. The lawyer can also help you understand divorce process, cost, and how a divorce will affect your family. The sooner you consult a lawyer, the better prepared you will be.
2. Gather financial information.
   Financial information is the center of a divorce. From the first time you go to court until the last, financial information is critical to your case. Financial statements must be filled out almost every time you go to court. These forms are signed under the pains and penalties of perjury and must be accurate. When you have documents that accurately explain your financial status, you will save attorney fees and have more accurate financial statements. As you approach a divorce, make copies of financial documents and put them in a safe place where your spouse won't find them. If you have assets that are not documented like paintings, coin collections, or other collections, you should make a list of these items and photograph them.
   
3. Start tracking your budget.
   A financial statement discloses your income, expenses, assets, and liabilities. Many people have difficulty calculating their expenses. If you start recording your expenditures it will help you complete a financial statement. If you don't get divorced, you may find that tracking your expenses will help you take command of your budget. If financial problems are damaging your marriage, recording your expenses may help you discuss your issues with your spouse.
   
4. Don’t hide assets.
   Courts expect people to be honest. If you get caught hiding assets, you can expect that the Judge will punish you. If you are caught hiding assets, a Judge may charge you with more assets than you actually took. Judges have great discretion in resolution of divorces and you don't want the Judge to think that you are trying to perpetrate a fraud on the court. You always want the Judge to think that you are honest and acting in good faith.
   
5. Don't speak ill of your spouse.
   If you haven't decided to end your marriage, trash-talking about your spouse is not going to help your relationship. If you have decided to end your marriage, nothing good will come from saying bad things about your spouse. If you have children you don't want your children to hear you speaking poorly about your spouse. The same is true for friends and relatives. Any statements you say about your spouse can be brought into court and influence the Judge. If you have a custody battle, these statements may be the basis for awarding custody to your spouse. Remember that bad statements are not limited to verbal statements. Make sure you behave on social media like Facebook. Any postings on the internet may be introduced in court. Don't post anything that you don't want a Judge to see.
   
6. Don't destroy evidence.
   If you destroy documents or other evidence, a Judge may treat this as if you are hiding assets. Just as a Court looks to good faith in disclosing financial information, the Court will also look to good faith in preserving evidence. Since social media (Facebook) may be introduced as evidence, you should not destroy postings on social media.
   
7. Get help from a therapist.
   The decision to divorce can be one of the most difficult and stressful decisions in a person's life. Consult a therapist to deal with the stress and possibly the decision about terminating your marriage.  Massachusetts health insurance policies have mental health benefits.  Consult your health insurance company to understand your coverage and to choose an appropriate therapist who is covered by insurance.
   
   
   
   

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.