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June 2015 Archives

Court Deviates From Durational Limit With Extension Of Alimony Paid To A Disabled Spouse

Since the enactment of the Alimony Reform Act of 2011 (the "Act"), alimony awards once considered ambiguous or lifetime entitlements are now subject to specific, durational time limits based upon the length of the parties' marriage. But, under what circumstances might such durational limits be extended?  In a recent decision, a Probate and Family Court (Hampshire Division) judge has ruled that a former husband's obligation to pay alimony to his disabled former wife shall continue beyond durational limits.  Barcalow v. Barcalow (Lawyers Weekly No. 15-003-12.) In the Barcalow case, the parties were married for approximately 6 years, 2 months (or 74 months).  By the terms of the Act, if the duration of the marriage is 10 years or less, but more than 5 years, general term alimony shall be no greater than 60 percent of the number of months of the marriage.  G.L. c. 208, § 49(b).  Following passage of the Act and more than 7-years post divorce, Mr. Barcalow filed a Complaint for Modification, seeking to terminate his alimony obligation to his former wife based, in part, upon the fact that his obligation exceeded the Act's durational limit.

Appeals Court Clarifies What Constitutes Exceeding An Arbitrator's Authority, Approves Arbitration of Statutory Claims

The Massachusetts Appeals Court has ruled that an arbitrator exceeds her authority only when "she awards relief beyond the scope of the arbitration agreement, beyond that to which the parties bound themselves, or enters an award prohibited by law." Conway v. CLC Bio, LLC, 2015 WL 9883907, Mass. App. Ct. No. 14-P-350 (June 12, 2015), at 5-6. The Court also reiterated that the Federal Arbitration Act ("FAA") requires enforcement of an agreement to arbitrate statutory claims "absent a question of arbitrability, countervailing Congressional command, or cognizable challenge to the validity of the agreement to arbitrate." Id., at 10. 

Challenging A Zoning Decision In Boston

Local zoning decisions can radically change the landscape of neighborhoods, and challenging a local zoning board's decision in the Commonwealth's courts poses several procedural traps for the unwary. This is particularly true for challenging zoning decisions issued by the City of Boston's Zoning Board of Appeal.

As a Personal Representative, Do You Have to Sell Real Estate?

The largest asset in an estate is often real estate, such as the family home.  Sometimes the decedent owns additional real estate, such as a vacation home or an income-producing rental property.  What happens to such property varies in every situation and poses different risks for the Personal Representative.  The most straightforward situation is when the decedent leaves real estate through a Will to a devisee, such as a parent leaving the family home to their children.  Upon the parent's death, the real estate transfers to the children to whom it was devised through the Will, subject only to certain allowances, rights of creditors, elective share of a surviving spouse, and administration.  See M.G.L. c. 190B, § 3-101. 

Supreme Judicial Court Clarifies Scope Of Derivative Privilege

Cases often turn on the scope of an exception. Recently the Massachusetts Supreme Judicial Court clarified the "sharply limited" scope of the derivative attorney-client privilege, an exception to the basic rule that disclosure of otherwise privileged communications waives the client's right to prevent disclosure of those communications to third parties, whether in litigation or otherwise - even if that disclosure proves fatal to the client's case. See DaRosa v. City of New Bedford, 471 Mass. 446, 463 (2015). The SJC recognized that exception in a 2009 decision, holding that a third party's involvement in otherwise privileged communications would not waive that privilege where "the [third party's] presence is 'necessary' for the 'effective consultation' between client and attorney" such as where the third party's "role is to clarify or facilitate communications between attorney and client." Comm'r of Rev. v. Comcast Corp., 453 Mass. 293, 307-08 (2009).

As a Personal Representative, Do You Have to Sell Real Estate?

The largest asset in an estate is often real estate, such as the family home.  Sometimes the decedent owns additional real estate, such as a vacation home or an income-producing rental property.  What happens to such property varies in every situation and poses different risks for the Personal Representative.  The most straightforward situation is when the decedent leaves real estate through a Will to a devisee, such as a parent leaving the family home to their children.  Upon the parent's death, the real estate transfers to the children to whom it was devised through the Will, subject only to certain allowances, rights of creditors, elective share of a surviving spouse, and administration.  See M.G.L. c. 190B, § 3-101.

One Step Closer to Enforcing Foreign Child Support Orders: U.S. Ratification of the Hague Convention on the International Recovery of Child Support is Near

The cross-border enforcement of child support has long bedeviled parents and children who seek a delinquent parent's compliance with a court order. Given the many difficulties inherent to the enforcement of court orders in foreign jurisdictions, as well as the heavy costs associated with those efforts, many parents had a difficult time registering and enforcing child support orders if the debtor was in another country.

Appeals Court Clarifies What Constitutes Exceeding An Arbitrator's Authority, Approves Arbitration of Wage Act Claims

The Massachusetts Appeals Court has ruled that an arbitrator exceeds her authority only when "she awards relief beyond the scope of the arbitration agreement, beyond that to which the parties bound themselves, or enters an award prohibited by law." Conway v. CLC Bio, LLC, 2015 WL 9883907, Mass. App. Ct. No. 14-P-350 (June 12, 2015), at 5-6. The Court also reiterated that the Federal Arbitration Act ("FAA") requires enforcement of an agreement to arbitrate statutory claims "absent a question of arbitrability, countervailing Congressional command, or cognizable challenge to the validity of the agreement to arbitrate." Id., at 10. 

Striking a Balance: Judicial Liens Survive Bankruptcy Under Massachusetts Law

In an attempt to strike a balance between a debtor's right to the "fresh start" contemplated in the Bankruptcy Code and a creditor's right to collect on secured debt, the Massachusetts Supreme Judicial Court (the "SJC") has squarely held that a judicial lien survives a bankruptcy discharge unless the Bankruptcy Court has ruled that the lien should be avoided.

One Step Closer to Enforcing Foreign Child Support Orders: U.S. Ratification of the Hague Convention on the International Recovery of Child Support is Near

The cross-border enforcement of child support has long bedeviled parents and children who seek a delinquent parent's compliance with a court order. Given the many difficulties inherent to the enforcement of court orders in foreign jurisdictions, as well as the heavy costs associated with those efforts, many parents had a difficult time registering and enforcing child support orders if the debtor was in another country.

U.S. Supreme Court Rules That Underwater Mortgages Cannot Be "Stripped Off"

While the American economy has shown tentative signs of stabilization and recovery, the nation's courts continue to grapple with legal questions that emanate from the Great Recession and the bursting of the so-called "housing bubble."  In one notable development, the United States Supreme Court has decided an important question regarding the treatment of home mortgages in Chapter 7 bankruptcy cases (i.e., cases in which the bankruptcy trustee gathers and sells the debtor's non-exempt assets and uses the proceeds of such assets to pay creditors in accordance with the Bankruptcy Code.)  

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