Congress created the classification of "special immigrant juvenile" in the Immigration Act of 1990, providing that a certain percentage of immigrant juveniles would be allowed to petition for lawful U.S. permanent residency (i.e. "Green Card") if they met specific requirements. 8 U.S.C. § 1101 (a) (27) (J). In 2008, Congress passed the William Wilberforce Trafficking Victims Protection Reauthorization Act ("TVPRA"), which amended and clarified SIJS requirements.
Congress created the classification of "special immigrant juvenile" in the Immigration Act of 1990, providing that a certain percentage of immigrant juveniles would be allowed to petition for lawful U.S. permanent residency (i.e. "Green Card") if they met specific requirements. 8 U.S.C. § 1101 (a) (27) (J). In 2008, Congress passed the William Wilberforce Trafficking Victims Protection Reauthorization Act ("TVPRA"), which amended and clarified SIJS requirements.
The Rule 410 Mandatory Self Disclosure provisions of the Supplemental Probate and Family Court Rules is one of the most basic, yet misunderstood, requirements of divorce litigants.
The Alimony Reform Act specifies statutory limits for the duration of alimony depending on the length of the marriage. The shorter the marriage, the shorter the duration of an alimony obligation. The length of marriage is defined as the "number of months from the date of legal marriage to the date of service of a complaint or petition for divorce or separate support." But what happens in the event that there is more than one complaint for divorce, or complaints for support and modification? What becomes the "end date" of the marriage so that one can determine how long the marriage was and, consequently, how long the alimony obligation will last?
A pension is one of the hardest earned assets a spouse can own. Divorce professionals are acutely aware of this and take great care to apply the same kind of focus, hard work and attention to detail to value a pension as the plan owner applied to earning it. This blog will be divided into two parts. The first part will explain the nature of a defined benefit pension plan and detail the information required to properly value a pension. The second part, to be published August 13, 2018, will focus on how pension plans are divided during divorce.
The United States Census Bureau shows the median age of individuals at the time of their first marriage is becoming increasingly older for both men and women. Meanwhile, the number of unmarried individuals cohabiting with their significant others is growing. These trends may be due in some part to couples delaying the responsibilities of marriage as they focus on their careers, but here is something all couples should know: for purposes of determining the length of a marriage for an alimony award, the period of premarital cohabitation could be included regardless of whether both parties were contributing financially.
In a decision handed down on May 3, 2018, the Massachusetts Appeals Court reversed a Probate and Family Court Judge's ruling and held that the court must dismiss a petition for grandparent visitation "when the petition does not sufficiently allege why visitation is necessary to protect the child from significant harm." See Martinez v. Martinez-Cintron, No. 17-P-1056 (Mass. App. Ct. May 3, 2018).
Many litigants, particularly in highly contested divorce or custody modification actions, often insist that their case will never settle, and will ultimately need to proceed to a trial. In fact, only a very small portion of such cases which are filed in the Massachusetts Probate and Family Court proceed to a trial. This is due in part to one of the most important court dates for both lawyers and litigants alike: the pre-trial conference.
The Probate & Family Court recently announced that the Fiduciary Litigation Pilot Project under Standing Order 3-17 (https://www.mass.gov/probate-and-family-court-rules/probate-and-family-court-standing-order-3-17-fiduciary-litigation) has been expanded to apply to cases filed in Essex and Plymouth Counties. Previously, the pilot project applied to case filed only in Middlesex, Norfolk and Suffolk Counties.
Removal matters - where one parent seeks to move with a child or children either to another state or to a place within the Commonwealth that is far enough away to cause a significant impact on the parenting plan - are amongst the most fraught cases that attorneys and courts have to wrestle with. Unlike most other issues that arise in the context of parenting, removal matters do start to resemble zero-sum conflicts where the stakes can be enormous.
One of the new provisions of the new tax reform bill - background here - is that the long-standing tax deduction for alimony will no longer be available for separation agreements and divorces obtained after December 31, 2018. Specifically, the reform applies to "any divorce or separation instrument . . . executed after December 31, 2018" (emphasis added).
The price of Bitcoin has recently skyrocketed, rising from $1200 per Bitcoin in the second quarter of 2017 to $ 10,000 per Bitcoin in 2018. However, the law has not kept pace: critical questions remain regarding how Bitcoin should be valued. For example, if Bitcoin is fraudulently transferred, how should damages be calculated? In February 2016, in the first case of its kind, the U.S. Bankruptcy Court for the Northern District of California held that, for the purpose of the fraudulent transfer provisions of the U.S. bankruptcy code, Bitcoins are not the equivalent of United States dollars. However, the court left open whether Bitcoin should be valued as a currency or a commodity.
The new tax reform bill (https://www.congress.gov/bill/115th-congress/house-bill/1), which was signed into law on December 22, 2017, eliminates (http://money.cnn.com/2017/12/15/pf/taxes/alimony-tax-bill/index.html) the tax deduction for alimony payments for separation agreements and divorces obtained after December 31, 2018.
In contested custody cases where a child rejects contact with a parent, the rejected parent often accuses the aligned parent of engaging in alienating behaviors that are intended to sever the attachment between the child and the rejected parent.
I recently came across Edward Kruk, PhD's article in Psychology Today entitled "Equal Parenting and the Quality of Parent-Child Attachments." The article summarizes research on parenting plans that I have found useful in support of some clients' requests for equal parenting time (R. Bauserman, "A meta-analysis of parental satisfaction, adjustment and conflict in joint custody and sole custody following divorce," Journal of Divorce and Remarriage ; W.V. Fabricius, "Parenting time, parent conflict, parent-child relationships, and children's physical health," Parenting Plan Evaluations: Applied Research for the Family Court ).
In the Alimony Reform Act of 2011, St. 2011, c. 124 ("the Act"), "alimony" is defined as "the payment of support from a spouse, who has the ability to pay, to a spouse in need of support for a reasonable length of time . . . ." G. L. c. 208, § 48. However, because neither "ability to pay" nor "need of support" are defined in the Act, Probate and Family Court judges are given the discretion to balance numerous other factors, such as the parties' ages, health, incomes, and economic and non-economic contributions to the marriage, in order to arrive at a fair alimony award. See G. L. c. 208, § 53 (a).
In Leon v. Cormier the MA Appeals Court upheld a contempt judgment against a mother who violated a parenting coordinator's order related to the mother's e-mail communications with the father. Specifically, the parenting coordinator ("PC") ordered that "as a rule, emails between [the parties] should . . . occur during . . . designated Tuesday email time. The ONLY exceptions are in the case of significant emergency or a necessary change in logistics that must be established for something that is to occur prior to the next Tuesday email time."
The Massachusetts Appeals Court has issued a Rule 1:28 Memorandum and Order in a divorce case entitled Roof v. Abelowitz upholding the validity and enforceability of a prenuptial agreement that the wife signed only one day prior to the wedding. The court considered two particularly interesting factors in finding that the wife's waiver of rights under the prenuptial agreement was valid. In this case, the size and formality of the wedding and the prior married and divorced status of the wife carried weight.
A parent coordinator can be a blessing in high-conflict divorce or support cases involving parenting and custody of a child or children. Occasionally, parents, for one reason or another, are unable to communicate effectively about parenting time, extracurricular activities, or expectations of each other or the children. At other times, parents simply may not see eye-to-eye about what is in the best interests of the children. These disagreements, or differences as to how to communicate, can have serious repercussions on the stability of the children and make it difficult, if not impossible, to co-parent. A skilled parent coordinator can be a very valuable resource in addressing these issues and helping to resolve conflicts.
Many clients describe the Rule 401 financial statement as "a giant pain," "putting square pegs into round holes," or "the most annoying thing I've ever done in my life." While filling out a financial statement can often be fairly simple, sometimes it can take days or even weeks of work. Filing a financial statement may actually happen many times over the course of a proceeding, and the parties may even choose informally to exchange financial statements on a voluntary basis. Why is it then, that almost every party to a domestic relations matter has to fill out a financial statement?
A final question to the candidates during a recent presidential debate reminded me of a topic that often comes up in the context of co-parenting work in high-conflict cases, interviews by custody evaluators, questioning at depositions in custody disputes, documents submitted to a judge, and oral arguments at custody hearings or trials.
On August 30, 2016, President Obama signed the instrument of ratification for the Hague Convention on International Recovery of Child Support and Other Forms of Family Maintenance. A White House press release of the same date describes the Convention's "numerous groundbreaking provisions that, for the first time on a global scale, will establish uniform, simple, fast, and inexpensive procedures for the processing of international child support cases, which benefits children and those responsible for their care."
Last month, the Commonwealth's highest appellate court considered how legal parenthood is defined in the context of children born to a same-sex couple as a result of artificial insemination. The case, Partanen v. Gallagher, is currently under advisement by the Supreme Judicial Court. The Court's opinion could result in new parameters for what it means to be a parent in Massachusetts. At issue is the scope of the legal rights that an unmarried woman, who was previously in a relationship with the child's biological mother when the child was conceived using artificial insemination, enjoys after the relationship ends.
Prior to walking down the aisle in 2014, celebrity power-couple Kanye West and Kim Kardashian entered into a prenuptial agreement, a fact that was far from surprising given that Forbes pegged the parties' respective net worths at $100 million and $40 million dollars, approximately. While prenuptial agreements for the ultra-rich are nothing new or noteworthy, it was West's alleged financial woes, not his fortune, that recently made waves across the internet. The hip-hop mogul took to Twitter last month to bemoan that he was $53 million in "personal debt".
Alimony is the payment of money (i.e., cash) made to, or on behalf of, a former spouse provided that:
In any divorce, the division of assets and support calculation (if any) will be one of the main, if not the main, focal points of the divorce process. In order to accomplish this task, both parties and their counsel should have a thorough understanding of the parties' financial circumstances - income, expenses, assets, and liabilities, among other things. Such concerns are often the target of discovery - parties are entitled to receive relevant information from the other side in order to make an informed decision. Such processes can sometimes be time-consuming and expensive, particularly in cases involving more complex financial arrangements.
Recognizing a child's need/right to receive financial support from both parents - even when those parents are apart - the DOR employs various methods to assist families in enforcing court-ordered child support obligations.
In a recent appeal arising from a post-divorce modification action, Hoegen v. Hoegen (14-P-1491), the Massachusetts Appeals Court decided that income realized from vested restricted stock units (RSUs) must be included in the calculation of child support.
Supreme Judicial Court Rule 1:18 encompasses the Uniform Rules on Dispute Resolution ("Rules"). The Rules govern court-connected dispute resolution services provided in civil and criminal cases in the Commonwealth's trial courts. One of the express purposes of the Rules is to "foster innovation" in the delivery of court-connected dispute resolution services. Conciliation is an alternative dispute resolution process offered in many of the Commonwealth's Probate & Family Courts, and in some District and Superior Courts.
The Massachusetts Appeals Court recently issued a decision in a divorce case called Jankovich v. Jankovich. It was a Rule 1:28 decision, which is primarily directed to the parties and, therefore, may not fully address the facts of the case or the appellate panel's decisional rationale. Rule 1:28 decisions are not circulated to the entire Appeals Court, and, therefore, represent only the views of the panel that decided the case. Also, such a decision may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. Still, this particular case addresses the issue of children's access to third parties, which we as family lawyers often encounter in contested divorce cases.
In a decision handed down on June 25, 2015, the Massachusetts Supreme Judicial Court recognized a "parental privilege" to use reasonable physical force to discipline a minor child as an affirmative defense in a criminal action. (See Com. v. Dorvil, 472 Mass. 1 (2015)).
With the explosion of social media over the last decade, evidence from Facebook, Twitter, MySpace, and Instagram is now routinely used in divorce cases, shedding light upon critical factors such as a party's spending habits, irresponsible behavior, or failure to make a good faith effort to find a job. More often than not, an avid social media presence is considered a risk to a divorcing litigant, as anything a party posts online can usually be retrieved and used against him or her in a potentially damaging manner. As a result, divorce attorneys typically advise their clients to refrain from social media altogether during a contested family law proceeding.
Financial stress is often cited as a leading cause of divorce. Financial stress can have an extreme impact on a relationship. It can eventually wear away at the love and affection that one has for another because of how consuming the issue can be in someone's life - exhausting someone emotionally and depleting their personal resources to continue to work hard at being in a healthy committed relationship. Of course, financial stress is usually not the only cause for the breakdown in a marital relationship, but it can have an impact on more aspects of a couple's life than just their finances.
Trustees sometimes face beneficiaries disagreeing about how to maintain real estate owned by a trust, such as a family vacation home. But does a trustee have standing to bring a partition action to sell Massachusetts real estate? Likely not.
From a legal perspective, getting hitched in Massachusetts is fairly quick and simple, requiring little more than a valid marriage license and a proper officiant. It is not even necessary to be wed by a clergy member or Justice of the Peace, as anyone over the age of 18 in reasonably good character can receive a one-day designation to solemnize the marriage. Divorce, on the other hand, is rarely if ever as easy or efficient, and contested proceedings take months and even years to finalize.
In a recent decision, a panel of the Massachusetts Appeals Court considered a Probate and Family Court's modification judgment ordering the payment of additional child support that was calculated based upon the portion of the parties' joint income in excess of $250,000. Martin v. Martin, 87 Mass. App. Ct. 1119 (2015) (pursuant to Rule 1:28).
In negotiating parenting plans for nearly 20 years, I have gradually eliminated a few different words from my vocabulary. For example, it's been a long time since I've used the words "visit" or "visitation" to describe what a non-custodial parent does when he or she is with his or her children - regardless of whether it's related to a Wednesday night dinner, a full weekend of overnights from Friday pick-up to Sunday night drop-off, or an extended period of vacation.
Abraham Lincoln has famously stated that "a house divided against itself cannot stand"; and the disposition of the marital home is often one of the most contentious issues in a divorce case. In many cases, the marital home represents the couple's most significant asset (other than retirement assets) and deciding how to distribute the property can be thorny, particularly as the mortgage lender will continue to consider both parties jointly obligated until the property is either sold or refinanced.
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.
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.
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.
Many married couples give little thought to the issue of which party "legally owns" property acquired during the marriage or the impact that legal ownership may have upon the distribution of assets in the event the marriage ends by death or divorce. Some couples assume, albeit incorrectly, that all property is "marital" in the sense that everything owned by either party will pass to the surviving spouse in the event of death. Other couples assume, also incorrectly, that owning property in one's individual name (rather than jointly) will protect the asset from the other in the event of divorce. While neither assumption is correct, the irony of the current state of Massachusetts law is that parties are afforded far greater rights in the property and estate of the other if their marriage ends in divorce than they are if their marriage ends in death.
In a case entitled Adoption of a Minor, SJC-11797, slip op. (May 7, 2015), the Massachusetts Supreme Judicial Court decided that lawful parents (a married same-sex couple) of a child conceived through in vitro fertilization are not required to give notice to a known/biological father/sperm donor in conjunction with a joint petition for adoption.
In divorces, determining the value of real property (the marital home, for example) may become a key issue. While a seemingly simple concept, the term "value" may have several different meanings depending upon the context in which its used in litigation, and understanding the various methods of determining the "value" of real property is crucial.
In Silverman v. Spiro, 438 Mass. 725 (2003), the Massachusetts Supreme Judicial Court held that a judge can enter a qualified domestic relations order (QDRO) requiring a party in a domestic relations dispute to pay the other party's attorney's fees and costs (attorney's fees) out of his or her retirement account in the context of a claim for the collection of past due spousal or child support.
Two renowned psychologists who work with children in the context of divorce and separation, Daniel B. Pickar, PhD, ABPP and Robert L. Kaufman, PhD, ABPP, presented a seminar at the 50th Anniversary Conference of the Association of Family and Conciliation Courts in Los Angeles entitled "Parenting Plan Considerations for Special Needs Children."
The Supreme Judicial Court recently ruled, in a much-anticipated decision, that a parent has a right to court-appointed counsel when a third party is petitioning for permanent guardianship over his or her child. The decision in the case, the Guardianship of V.V., is of particular note because the SJC ruled on the underlying issue - whether a parent has a right to counsel in guardianship cases - despite the fact that the decision affecting the parties was moot, as the mother has succeeded in removal of the guardianship. It is highly unusual for courts to rule on cases that are moot. However, the court stated that, due to the importance of the issue, it was incumbent upon the court to exercise its discretion and provide an answer to the central question.
During a contested divorce or paternity action involving minor children, and often long after the case is formally resolved, some parents face ongoing disputes over "day to day" matters such as whether Fitch Law Partners LLP should participate in two extracurricular activities or three. The failure, inability, or outright refusal of one or both parents to communicate and reach an agreement with respect to these matters can lead to repeated court appearances and thousands of dollars in legal fees. In order to provide parties a forum for efficiently resolving such disputes, as well as assistance with learning to better communicate and co-parent, many parties will agree or be ordered to engage a professional parent coordinator ("PC").
On January 20, 2015, the Supreme Judicial Court issued decisions in three cases involving an important provision of the Massachusetts Alimony Reform Act ("the Act"). In each of these cases, which are described more fully below, the alimony payor wanted to terminate their alimony obligation based upon the Act's language that alimony "shall terminate upon the payor attaining the full retirement age." See G.L. c. 208, § 49(f).
The Appeals Court recently affirmed a Probate and Family Court judge's decision -- made pursuant to the "second look" doctrine -- to award a wife $400,000 as a substitute for the principal residence that she was to receive according to the letter of the parties' prenuptial agreement. Kelcourse v. Kelcourse, No. 13-P-1741 (decided Jan. 21, 2015), 2014 WL 7653645.
The Massachusetts Appeals Court recently upheld the "non-modifiability" of surviving alimony agreements under the Alimony Reform Act of 2011 ("act"). The case is called Lalchandani v. Roddy.
Helping to prevent possible international parental child abductions is the U.S. Department of State's Children's Passport Issuance Alert Program (CPIAP). CPIAP provides a mechanism for a parent(s) and/or legal guardian(s) to be contacted and alerted when someone submits a passport application for a registered child.
The Alimony Reform Act of 2011 provides for alimony to presumptively terminate when a payor reaches full retirement age unless a Court finds that a material change in circumstances has occurred and there is clear and convincing evidence to support an extension of the payments. While appellate courts have yet to rule as to what facts and circumstances may justify such an extension, at least one trial court has found that the ability of a wealthy former spouse to continue to pay support after reaching full retirement age is not, in and of itself, sufficient to justify an extended alimony order.
The Hague Convention on the Civil Aspects of International Child Abduction (the "Hague Convention") is a multilateral treaty. The signatory countries cooperate in returning children to their home country for custody proceedings. The United States assisted in drafting the Hague Convention and became a signatory in 1981. Hague Convention cases sometimes involve disputes over visitation rights, but more often these cases focus on returning a child whose parent has wrongfully removed the child from the home country or wrongfully retained the child in a foreign country. In return cases, the left-behind parent with custodial rights seeks the child's return to the country of habitual residence. Once the child is returned, the court in the child's home country can evaluate the underlying merits of the custody dispute.
In a recent case, the Massachusetts Appeals Court explored the issue of preclusion - once a person has gotten divorced, can his or her ex-spouse sue them for related conduct? The answer is yes, but not always. The Appeals Court explored both sides of res judicata - claim preclusion and issue preclusion, in reaching its determination.
In a recent Appeals Court case of Hassey v. Hassey, a provision in a divorce judgment requiring a husband to pay thirty percent of his anticipated future gross income to his former wife was struck down as inconsistent with the terms of the Alimony Reform Act of 2011.
In a recent decision [Hoort v. Hoort, Mass. App. Ct., No. 12-P-1853, slip op (May 28, 2014)], the Massachusetts Appeals Court reversed a Probate and Family Court Judge's finding of civil contempt against a husband, when the husband was not found in contempt for the exact same issue in a prior contempt action brought by the wife only one year earlier.
One of the main issues facing divorcing and separating parents is to establish a parenting plan when each party provides care and custody for his or her children. There are a number of different parenting plans that can be negotiated or ordered. Under any such plan, the challenge is for one parent to respect the parenting time of the other parent. Often, one parent wants what is called a "right of first refusal." This is when the parent who is not scheduled to have the children is under a contractual right to receive notice from the parent who has the children, but is unable to parent during any specific period of scheduled parenting time. Under those particular circumstances, the parent who is scheduled to be with the children must notify the other parent that he or she is unable to parent for one reason or another and offer the other parent the opportunity to have additional parenting time. This would be in lieu of asking a babysitter, family member or friend to step in and provide childcare during those periods.
With the recent enactment of the Massachusetts Uniform Trust Code ("MUTC") and the Massachusetts Uniform Probate Code ("MUPC"), several procedural differences have become more prominent between probate and equity cases pending at the Probate and Family Courts.
In yet another decision that underscores the "elemental tenet" of arbitration that a party cannot be compelled to arbitrate if he or she has not agreed to arbitrate, the Massachusetts Appeals Court recently ruled that a non-signatory to an agreement cannot be compelled by a signatory to arbitrate a dispute that the non-signatory did not agree to arbitrate.
Louis C.K., one of my favorite standup comics, and the star of the FX series, "Louie," has a serious side. It stems in part from his experience as a divorced dad of two young girls and the effective co-parenting relationship that he has with their mother.
The enactment of the Alimony Reform Act of 2011, which went into effect March 1, 2012, was hailed as the most dramatic reform in family law in decades. The sweeping new law effectively ended the reign of lifetime alimony in Massachusetts, tying the length of time that a former spouse could be ordered to pay "general term" alimony (traditional alimony paid to an economically dependent spouse) to the length of the marriage in marriages of 20 years or less, and to hard limits of three years for "transitional alimony" (paid to help a spouse adjust to the change in lifestyle or location after divorce) and five years for "rehabilitative alimony" (intended to assist a recipient spouse in the short term who is expected to become self-supporting by a specific time). The Act further provides for the termination of alimony upon the payor reaching full retirement age or the recipient's remarriage.
A Massachusetts state senator has filed a bill that could prohibit a divorcing parent from having sex in his or her own home. The bill states: "In divorce, separate, or 209A proceedings involving children and a marital home, the party remaining in the home shall not conduct a dating or sexual relationship within the home until a divorce is final and all financial and custody issues are resolved, unless the express permission is granted by the courts."
With unanimous approval, members of the Massachusetts House of Representatives recently advanced An Act relative to domestic violence, new legislation aimed at preventing domestic violence (the "Act"). Said to be driven by the high profile case of Jared Remy, who is alleged to have brutally murdered his girlfriend only one day after he was released from custody on charges that he had assaulted her, the Act calls for increased training for law enforcement officers and court personnel, and the establishment of further legal remedies and protections for victims of domestic and sexual violence.
According to the United States Department of Justice, each year about 350,000 children are abducted against the backdrop of divorce or separation. The FBI's first mobile application, which is free and available in iPhone and Android versions, helps the authorities begin a more immediate and effective investigation if your child is abducted. With the FBI's Child ID App you can securely store photos and up to date identifying information about your child on your smartphone. With the click of a button, you can provide that information to the authorities to aid in their search.
We've been asked the question "who gets the engagement ring?" by a number of clients whose engagements have been terminated prior to marriage. As so often is the case in family law, the answer to that question is "it depends."
Settlement conferences in pending divorce and family law cases often result in the parties entering full and final settlement agreements. The parties in such a case appear at an uncontested hearing when they ask the Judge to approve and incorporate their signed agreement into the court's judgment. This settlement procedure takes place in lieu of the parties taking their contested issues to trial, after which the Judge enters a final judgment on behalf of the parties, which is a final resolution of the case not based on an agreement between the parties, but on the Judge's findings of fact and his or her application of the law to such facts, which must be presented to the Judge in accordance with applicable rules of evidence at trial. Trying a case can indeed be a very expensive and time-consuming process.
We live in an increasingly mobile society, and many parents today are raising their children in a different city, state or country from where one or both of the parties grew up. When a marriage breaks down and divorce is imminent, there is sometimes concern that the other parent may leave the state or even the country with the child.
Massachusetts Courts allow for the filing of a Joint Petition For Modification Of Child Support Judgment, when both parents agree that an adjustment to an existing child support judgment is warranted. Recent amendments to the Massachusetts Child Support Guidelines provide that a child support judgment may be modified when "there is an inconsistency between the amount of the existing order and the amount that would result from the application of the Child Support Guidelines." Modifying child support by joint petition may streamline uncontested support modification actions, as the Court may address such matters administratively and without the need for a hearing.
Often we are asked by separated or divorced parents, who are vacationing with their children overseas under the terms of their temporary orders or final judgments, whether a parental consent form or permission letter signed by the non-traveling parent is required. Although the United States does not formally require this documentation, we recommend that the traveling parent obtain such a signed and notarized consent form from the non-traveling parent, and that the agreements we draft contain a provision that obligates the non-traveling parent to provide such a consent form upon request from the traveling parent.
Picture this: it is a Tuesday morning, at 8:30 a.m., and you arrive at the Probate and Family Court with your attorney to appear for a scheduled hearing on a contested motion that you filed. Once you wait on a long line to get through the metal detectors, you enter the hallway outside the courtroom and your attorney checks the motion calendar list for the Judge assigned to your case. You first learn that your case has been referred to the Probation Department on a different floor of the courthouse for mediation, and your journey through motion practice in the Probate and Family Court begins.
Massachusetts laws regarding the care, custody and maintenance of children of divorcing or never-married parents specifically address the issue of health insurance, presumptively placing the burden of providing health coverage for an unemancipated child or children on the person who is obligated to pay child support. The statute applying to children of divorcing parents (Massachusetts General Laws Chapter 208 Section 28) and the statute applying to children of never-married parents (Massachusetts General Laws Chapter 209C Section 9) each state as follows: "When the court makes an order for maintenance or support of a child, said court shall determine whether the obligor under such order has health insurance or other health coverage on a group plan available to him through an employer or organization or has health insurance or other health coverage available to him at a reasonable cost that may be extended to cover the child for whom support is ordered. When said court has determined that the obligor has such insurance or coverage available to him, said court shall include in the support order a requirement that the obligor exercise the option of additional coverage in favor of the child or obtain coverage for the child."
Many individuals serve as a co-trustee of a trust, such as a family trust holding real estate or a trust of a parent or close friend after their death. Individuals who serve as a co-trustee or, more importantly, are contemplating serving as a co-trustee or successor trustee should be aware of a significant change since the enactment of the Massachusetts Uniform Trust Code ("MUTC") on July 8, 2012, specifically a change concerning the number of trustees that must agree to act when performing their fiduciary duties.
When parents of minor children separate, and have to establish appropriate parenting plans and make joint legal custodial decisions that are in their children's best interests, it is helpful to engage the services of mental health professionals, who can serve as parenting coaches. Parenting coaches can be engaged prior to, during, or after separation and divorce. Clients who have engaged parenting coaches often have a much easier time navigating through difficult child-related issues that come up in the context of separation and divorce.
Following what is described as a comprehensive review of the Massachusetts Child Support Guidelines Task Force, the Chief Justice of Massachusetts Trial Court released new Child Support Guidelines that became effective on August 1, 2013. In the Trial Court's June 20, 2013 Press Release, it is noted that these revised Guidelines, which supersede any previous Guidelines, are intended to take into consideration current economic realities facing families in Massachusetts.
With the enactment of the Alimony Reform Act of 2011, almost every former spouse with an alimony order has questioned whether he or she may be subject to the relief from, or the loss of, support payments under the new law. While the provisions of the Act clearly apply to parties who were divorced in Massachusetts and continue to reside here, former spouses who were divorced in another state, but have since moved to Massachusetts, are also wondering about the impact of Massachusetts alimony reform.
To make it easier for parties who enter written agreements for modification to have such agreements incorporated into enforceable court judgments or orders, Rule 412 has been expanded beyond judgments and orders regarding solely child support, and now include uncontested modifications of other child-related judgments and orders, including those related to custody and medical insurance coverage.
Generally, attendance at an approved Parent Education Program is required of all divorcing parents of minor children in Massachusetts. To better understand what such a program has to offer, and to learn about the grieving process in the context of divorce, I chose to attend such a court-approved program, which was held at a local high school (two sessions over a two-week period for about two hours each session).
In a case decided last month, the Court held that a Judge of the Massachusetts Probate and Family Court has the authority to order the allocation of tax dependency exemptions for divorced parents. When parents divorce, only one parent is permitted to claim the tax dependency exemption for parties' minor child(ren) on his/her tax returns. For the 2013 tax year, the tax dependency exemption is $3,900 for each dependent (subject to phase out based upon certain come levels). Disputes between divorcing parties can arise regarding tax dependency exemptions because being able to claim the tax dependency exemption for the minor child(ren) may provide one party with real tax savings.
I recently attended the 50th Anniversary Conference of the Association of Family and Conciliation Courts (AFCC). AFCC was founded in 1963, and now consists of more than 4,600 members, representing 49 states and 27 countries worldwide. Members include judges, court employees, private practice lawyers, mental health and dispute resolution professionals, policy advocates, policymakers, researchers, community agencies, academics and students. The association's work focuses on a wide range of topics of interest to a family law attorney such as mediation, custody evaluation, parent education, and parenting coordination. For the past 50 years, AFCC has been the leading interdisciplinary organization addressing the challenges of separation and divorce, and, in particular, the impact on children and families. I returned from this year's annual conference in Los Angeles with a wealth of information.
Flowers are blooming, temperatures are rising --- Spring is in the air. Wedding season is upon us - save the date postcards were mailed in January and June wedding dates are just around the corner. Just when you think all the wedding planning is almost complete, one of the parties raises the issue of prenuptial agreements.
Custody, visitation and removal cases are often decided based on the investigation and/or evaluation of a court-appointed Guardian ad Litem ("GAL"). GAL Consultants can help clients navigate the process.
On March 12, 2013, the Supreme Judicial Court ("SJC") in Morales v. Morales - SJC-11104 ruled that a divorced parent need not prove the widely recognized legal standard of "material and substantial change in circumstance" in order to modify a child support order in the Massachusetts Probate and Family Court.
The domicile statute in Massachusetts can be surprisingly confusing, especially when couples often own multiple homes, live in separate cities for professional reasons, or have recently moved to Massachusetts. All of these situations are governed by M.G.L. c. 208, § 4 and the "exceptions" to the domicile statute contained in § 5. Subject to certain exceptions, § 4 precludes a plaintiff from filing a divorce complaint in Massachusetts in the following situations: (1) if the couple has "never lived together as husband and wife" in Massachusetts, or (2) if the "cause" (i.e., the irretrievable breakdown) occurred in another jurisdiction (unless the parties had lived together as husband and wife in Massachusetts and one of them lived in Massachusetts at the time the cause occurred).
In a recent case, E.C.O. vs. Gregory James Compton (SJC-11259, March 13, 2013), the Massachusetts Supreme Judicial Court overturned a District Court Judge's extension of a G.L. c. 209A Abuse Prevention Order in favor of a 16-year-old girl whose father obtained a restraining order against a 24-year-old man, with whom the daughter was involved while she was traveling abroad. In doing so, the court shed some more light on legal standards in obtaining abuse prevention orders in general.
Amendments to Supplemental Probate Court Rule 412, which currently provides the method by which a child support judgment may be modified by agreement, may soon be expanded to include a method by which parties to an action may seek to modify, by agreement, any judgment or temporary order of the Probate and Family Court. (That said, actions under M.G.L. 209A, which govern abuse prevention orders, are specifically excluded from the modification procedures outlined in Supplemental Probate Court Rule 412.)
I recently read an article in the New York Times entitled "When the New You Carries a Fresh Identity, Too" written by Megan L. Wood that raised interesting questions about divorcing women and a name change after a divorce. The article brought up the fact that many divorcing women are at a crossroads of their life where the divorce gives them a chance to have a fresh identity by choosing a new last name. As the article recognizes, "[h]anging on to your ex's last name can daily conjure an unhappy past, while going back to a maiden name [they]'ve outgrown can be difficult to imagine." The solution, for some, is selecting another, neutral name.
In a recent custody case we litigated in the Massachusetts Probate and Family Court, a case in which the parties' minor child is a smart, articulate, athletic and very talented 11-year-old boy, an excellent resource published by the Association of Family and Conciliation Courts ("AFCC") called "Planning for Shared Parenting: A guide for Parents Living Apart" became a vital guide for the parties in formulating an effective parenting plan that both parties agreed is in their pre-teen's best interests. Formulating pre-teen parenting plans can be quite challenging. This particular AFCC guide articulates a number of important issues that the parties to a custody case should consider. Probate and Family Court judges often refer to the resource, so it is also something that should be considered in anticipating a possible judgment after a full-blown trial. This advance knowledge certainly helps settle cases, and in turn, reduces the overall cost of litigation.
In what are usually highly contentious divorces or child custody disputes, the term "parental alienation" has been coined to describe what is a form of emotional abuse that occurs when one parent actively works to align their child with him/her to the exclusion of the other parent, without justification, resulting in the child's rejection of the estranged parent. Merriam-Webster's online dictionary defines alienation as "a withdrawing or separation of a person or a person's affections from an object or position of former attachment; estrangement." In cases involving parental alienation, there is destruction of a child's once positive relationship with both parents. As one parent poisons the child against the other, the child's affinity shifts to only one parent while he/she alienates or rejects the other.
Although a "final judgment of divorce" terminates a legal marriage between spouses, all too often, the parties will remain embroiled in litigation for years to come, particularly with respect to issues surrounding the care and custody of their minor children. Even the most well-drafted parenting plan cannot anticipate and preemptively resolve all of the disputes that inevitably arise when raising children, and the failure, inability, or outright refusal of one or both parents to communicate and reach an agreement with respect to these matters (such as whether Susie can get her ears pierced, if Johnny can sign up for football, and which parent should be responsible for picking up the children on a snow-day) can lead to repeated court appearances and thousands of dollars in legal fees. While child-related issues can always been modified upon a material change in circumstances, and some matters genuinely require the court's intervention, many of these "day to day" disputes can be efficiently and cost-effectively resolved by the appointment of a "Parenting Coordinator" ("PC").
Studies indicate that parents who make disparaging comments about each other, engage in verbal altercations in the presence of their children, place the children in the middle of parental disputes, encourage protective behavior by the children in favor of one parent who may be seeking to alienate the children against the other parent, and who engage in other types of behavior that repeatedly expose their children to interpersonal, parental conflict may be causing significant adjustment problems for their children.
All clients involved in litigation need money to pay their counsel's legal bills, which include the initial retainer fee, fees incurred during the pendency of the litigation, and often replenishing the retainer fee. A client obtaining a divorce, however, has a unique problem in that they are precluded from dissipating marital assets -- i.e., using marital assets for their own use when the marriage is coming to an end and with the intent of depriving the other spouse of his or her fair share of the marital estate. Although the payment of reasonable counsel fees is not a violation of the automatic financial restraining order under Rule 411, even in the absence of a motion for counsel fees pendente lite, using joint marital assets to pay one party's counsel's fees reduces the total amount of the marital estate, thereby depriving the other spouse of their fair share of equitable distribution of all marital assets at the conclusion of the case.
Research published by the Centers for Disease Control and Prevention earlier this year found that nearly one in four first-born babies, or 22 percent, are born to unmarried parents living together. A growing cultural acceptance of having children out-of-wedlock has contributed to the dramatic jump in this statistic; the number of children born to unwed couples has nearly doubled since 2002.
Often we hear about the best interests legal standard that Judges in the Probate and Family Courts apply to make important decisions affecting the lives of minor children. Custody determinations and appropriate parenting plans are based on this guiding principle. Contrary to common belief, the "best interests" standard is gender-blind. M.G.L. Chapter 208, Section 31 provides that in determining the question of custody "the rights of the parents shall . . . be held to be equal." In deciding issues involving custody, the overriding concern of the Probate and Family Court Justice assigned to the case must be the promotion of the best interests of the children and their general welfare, not the gender, feelings or wishes of a particular parent.
The Massachusetts Department of Children and Families (DCF) is the state agency that receives and responds to reports of abuse and neglect of children. Following a report of child abuse or neglect, DCF's investigation is documented with records that likely contain formation concerning sensitive and personal issues. In deciding issues involving the care and custody of children, the Court may seek information/documents from DCF. In order to do so, the Court must abide by specific rules regarding Department of Children and Families Records in the Family Court.
In practice, upon the filing of a Complaint for Divorce, Modification, etc., and our receipt from the court of the original Summons, we often effectuate service of Summons and Complaint on the opposing party by mailing the original Summons, with a copy of the Complaint and the Track Assignment Notice, to the opposing party's attorney. This way the opposing party, in the privacy of his or her attorney's office, can sign the Acceptance of Service paragraph of the Summons before a Notary Public. This formally puts the Defendant on notice of the filing of the Plaintiff's lawsuit. It satisfies the requirement that the Plaintiff serve the Defendant with notice. But it also eliminates the embarrassment of a Process Server, Constable or Deputy Sheriff having to formally serve the opposing party in person, at work, in the presence of strangers, etc. Problems can arise, however, if there is a delay in opposing counsel having the opposing party come into his or her office to sign the Acceptance of Service paragraph of the original Summons, especially in cases involving a Complaint for Divorce.
In many divorce cases, when one party tells the other that the marriage has irretrievably broken down and there is no chance of reconciliation, the other party will voluntarily vacate the marital home. Often the primary caretaker of the minor children remains in the marital home with the minor children, and the other party moves out voluntarily to establish a second household in contemplation of engaging in a parenting plan that is in the best interests of the minor children. But what happens when the other party does not voluntarily vacate? What recourse is available to the requesting party to ask a Judge to intervene and issue to the opposing party orders to vacate the marital home?
Signed into law on August 2, 2012 and effective October 31, 2012, Massachusetts now has new legislation applicable to the care and custody of domesticated animals (i.e., the family pet) in connection with abuse prevention/harassment orders, a/k/a restraining orders, issued under M.G.L. c. 209A.
Registering a child support order that was obtained in another state or even in another country is accomplished in Massachusetts by following the procedure outlined in M.G.L. c. 209D. Otherwise known as the Uniform Interstate Family Support Act ("UIFSA"), this statutory scheme allows petitioners to register and enforce child support orders here in Massachusetts even though they were obtained in another state or country.
The Boston Globe's recent request to the Norfolk County Probate and Family Court to vacate portions of an impoundment order issued during Maureen Sullivan Stemberg's post-divorce action in 1990 against her ex-husband, Tom Stemberg (the founder of Staples), and make public the recorded, sworn testimony given by Mitt Romney during the trial highlights how impoundment works in the context of divorce and family law cases in Massachusetts.
The Bachelor Party. In the UK, it's known as "Stag Night"; in France, "enterrement de vie de garcon" - literally, "burial/funeral of the life as a bachelor." For grooms-to-be across the globe, it is a time honored tradition, and in the US, Las Vegas is commonly known as the ideal destination for this debaucherous weekend of gambling, drinking and good-natured hazing. Perhaps thanks to the oft-uttered mantra of "what happens in Vegas stays in Vegas", most bachelors return home no worse for the wear. For others, however, "what happened in Vegas" has resulted in damaged or broken marriages, and one Massachusetts husband will be paying the price for his misdeeds in cold hard cash.
Beth Shak, a famous World Series of Poker player and aficionado of expensive, designer shoes, who has been featured on MTV Cribs and Millionaire Matchmaker, is in the news again, and she gives us food for thought regarding Mandatory Self-Disclosure and Financial Statements in divorce cases.
According to the Guidelines for Parenting Coordination developed by the Association of Family and Conciliation Courts Task Force on Parenting Coordination, "[P]arenting coordination is a child-focused alternative dispute resolution process in which a mental health or legal professional with mediation training and experience assists high conflict parents to implement their parenting plan by facilitating the resolution of their disputes in a timely manner, educating parents about children's needs, and with prior approval of the parties and/or the court, making decisions within the scope of the court order or appointment contract."
Will an alimony recipient's cohabitation with another result in the termination of alimony?
I recently attended the 49th Annual Conference of the Association of Family and Conciliation Courts in Chicago. The conference was entitled Attachment, Brain Science and Children of Divorce: The ABCDs of Child Development for Family Law. In addition to seminars focused on the role of Parenting Coordinators in resolving disputes between parents in high-conflict custody cases, there were presentations on attachment theory, and how developments in social science help us formulate appropriate parenting plans, especially in cases involving infants and toddlers.
Adopted children or "issue" cannot take from an irrevocable testamentary trust executed at a time when adoptees were excluded from the definition of "child" in such instruments, despite adoption legislation aimed at achieving precisely that goal, according to the Supreme Judicial Court (the "SJC").
Upon the filing a Complaint for Divorce, the spouse initiating the divorce action, the plaintiff, becomes subject to the Automatic Restraining Order under Massachusetts Supplemental Probate and Family Court Rule 411. The spouse, who must respond to the plaintiff's action, or, in other words, provide an Answer to the Complaint, is the defendant; and he or she becomes subject Rule 411 upon service of process, i.e. when a Constable or Sheriff serves the defendant with the Summons and Complaint.
Business owners and their spouses involved in a pending divorce should consider various issues specifically related to business ownership. Here are a few of such considerations: