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THE ATTACK ON NON WORKING SPOUSES                March 27, 2013

During the course of a divorce or a modification dealing with support issues, be they alimony and/or child support, you may encounter terminology entitled “attribution of income”.  This is not arcane language.  This is often a very important issue in determining the amount of support.

Essentially, attribution of income means that a non-working spouse either has the ability to work and earn up to a certain amount of money per year, or the working spouse is underemployed, working at a job which pays less than that spouse is capable of earning.

A classic example of how attribution of income is determined and utilized is described in this fact pattern.  A lawyer is getting divorced from his stay at home wife and has been ordered by the probate court to pay alimony and child support totaling $150,000 per year [read more]

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DO ALL MARRIED COUPLES HAVE EQUAL RIGHTS?        January 25, 2013

 

The Constitution of the United States of America guarantees its citizens equal protection Fourteenth Amendment    

The Fourteenth Amendment has been frequently used in landmark decisions granting citizens of this country in different states those federally guaranteed rights in criminal prosecutions such as right to counsel, right to a jury trial, and right to confront witnesses.  These cases were the landmark and monumental cases of the Warren Court in the 1960’s and 1970’s.

These guaranteed rights were also applied via the Fourteenth Amendment to the states regarding desegregation cases.  Baby boomers surely remember the lunch counter encounters in Selma and the freedom riders throughout the south in the 1960’s.  The “separate but equal” standard was struck down by our nation’s highest court to ensure that George Wallace and company could not stand in the doorway of a university and prevent access by students because of their race. During World War II, our armed forces who fought so nobly in Europe and Asia, were segregated.  Those veterans of the “Greatest Generation” of color who fought in segregated divisions returned to their homes in 1945 to encounter the same discrimination that they had when they enlisted voluntarily.  As a result of application of the Fourteenth Amendment, the U.S. Supreme Court ordered an end to segregation.  These decisions were the basis for forced school bussing and other forms of integration which forced this country to realize that citizens of Georgia and of Massachusetts have the same federal rights.

The United States Supreme Court is now dealing with an equally monumental citizens’ rights issue which has yet not been recognized by federal law...[read more]

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FOR THOSE FORGOTTEN SPOUSES:     DISCUSSION OF THE NEW ALIMONY STATUTE CONTINUED

                                                                       January, 18, 2013  

This article is designed to discuss briefly what rights those individuals who have been receiving alimony in light of the change in the law.  Those former husbands or wives who are currently paying alimony know or should know that beginning on March 1, 2013, a complaint for modification to terminate alimony can be filed with the probate court in Massachusetts.  The party filing must have been married five years or less or is at full retirement age or will reach full retirement age by March 1, 2015.  Full retirement age as defined by the new statute is age 67.

The statute was designed to stagger the filing of modifications to end alimony based upon the length that the parties were married.  Had the statute not mandated staggered filing dates, the probate court would have been glutted with a wave of modification filings.  But what is to become of the former husband or wife who has been the recipient of alimony? Many a former spouse now stand with great trepidation... [read more]

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CHRISTMAS AND PARENTING PLANS                     

December 6, 2012

Sharing time with your children during the holidays is easier said than done.  If you were to visit the family services department (now referred to as the probation department) of any probate court in Massachusetts during this wondrous holiday season, you would see distressed moms and dads, either armed with lawyers or not, waiting to meet with the court mediator.  The issue of dispute predictably would be the implementation of a parenting plan for the holidays.

Although there are many holidays in the month of December, in this particular article I am focusing on Christmas. 

If you are already divorced, and your divorce agreement provides for a schedule and some methodology for sharing this holiday, you may be fine.  That parenting plan, as we term it, is essential for surviving the stress and demands of the season.  If, however, your divorce agreement does not have a parenting plan that specifically describes where the children will be for Christmas Eve and Christmas Day, of if you are currently going through a divorce and have no parenting plan in place, you may be one of those distressed moms or dads in the courthouse trying to battle it out.

So what, you ask, is the usual scenario for the sharing of Christmas?...[read more]

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PET LABRADOR GRANTED RESTRAINING ORDER    November 28, 2012

Reported in the Patriot Ledger a six year old Labrador mix was successful in getting protection pursuant to the newly enacted amendment to protective orders, heretofore the protection of individuals under Mass. General Laws, Chapter 209A. The amendment to the law is intended to protect household pets from abuse. Therefore, a party who is seeking a restraining order against a home partner can also seek an order of protection for the pet...[read more]

 

Have Fault Grounds Lost Their Relevancy in Today’s Society?        November 26, 2012

Until 1974, when the legislature enacted irretrievable breakdown  as grounds for divorce via Massachusetts General Laws, Chapter 208, Sections 1A and 1B, in order to secure a divorce in Massachusetts fault had to be alleged and proved in court. The basic grounds that were listed and still are listed in section 1 of Massachusetts General Laws, Chapter 208, included: adultery, cruel and abusive treatment, gross and confirmed habits of intoxication and desertion.   Prior to 1974, the most frequent ground that was used for divorce was cruel and abusive treatment; that is, [read more]

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WHAT IS ALIMONY?            November 9, 2012

For the 38 years that I have practiced divorce law, the word alimony has been the anathema to those divorcing individuals and an obligation, in their view, to be avoided. With the enactment of the Alimony Reform Act of 2011, your basic understanding of what alimony is should be a prerequisite to your understanding the new law.
In simple terms, alimony is cash payments made to a soon-to-be former spouse or former spouse pursuant to a written agreement and/or court order until the death of the recipient. Other triggers can be included in an agreement or court order which would conclude alimony earlier. Typically, what you will read in a divorce order or agreement is that alimony will conclude upon the death of either party or the remarriage of the recipient. Now, under the new alimony statute...[read more]

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ALIMONY REFORM REVISITED: A BASIS AND A DEFENSE     November 1, 2012

As we discussed in a previous blog, Massachusetts Alimony Reform is now law. People who are 67 years old or older and have retired may bring an action for modification beginning on March 1, 2013. Others who wish to bring their actions based only upon the time limits for alimony payments must wait until...[read more]
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VIRGINIA IS FOR LOVERS?                         July 31, 2011

 

A lead story in the Sunday New York Times dated July 29, 2012 concerned a same-sex married couple in Vermont who had one child born from one of the parties during the marriage by artificial insemination who had subsequently decided to divorce. Vermont does recognize same-sex marriage, and as a result, divorces in that instance are handled in the usual way.

The news story related how the Vermont court granted physical and legal custody to the birth mother and visitation to the other party. In the meantime, the birth mother took the child to Virginia, the state of origin of the birth mother. Virginia does not recognize same-sex marriages. While in Virginia, the birth mother apparently found religion whose view of the LGBT community and same-sex marriage was that those practices were an anathema.

The story continues... [read more]        

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HOW DIVORCE CAN IMPACT COLLEGE ADMISSIONS AND EDUCATIONAL EXPENSES OF YOUR CHILDREN                  June 14, 2012

Imagine if you will that your son or daughter in the latter part of senior year of high school has performed well on standardized testing as well as overall grade point average and is reviewing on the internet possible selections for college applications.  University of Massachusetts at Amherst is perhaps  $30,000 to $40,000 less than a private four year college such as Bates, Colby or Middlebury.   The disparity in expenses becomes even greater between the state school for an instate student versus a school like Sarah Lawrence, where the disparity might be $50,000 annually.

As responsible parents ...[read more]

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MEDIATION VERSUS LITIGATION         February 16, 2012

There are many benefits to ADR, otherwise known as Alternative Dispute Resolution.  The procedure is more civilized.  Lawyers can be involved and participate in the process.  The better mediators encourage the parties each get an attorney.  The often asked question is why do you want an attorney if you are doing mediation?  The simple answer is that the mediator’s role is to facilitate an agreement or at the very least a simplification of issues in contest.  However, the mediator cannot offer legal advice to either party, and independent, competent legal advice is highly important in negotiating a divorce agreement.

The parties are required to prepare documents that are similar to what is required by the court: a financial statement listing the assets, income, weekly expenses and debt. A good mediator raises the issues that need resolution from children’s issues, to division of property to alimony.  The process can result in a comprehensive agreement that deals with all of the issues of people who no longer want to live together. 

At the conclusion of mediation, if it has been successful, the parties have a signed agreement which can be presented to the probate court, along with a current financial statement, a joint petition for divorce and an affidavit of irretrievable breakdown.  The process rarely concludes with warm feelings emanating from the divorcing parties towards each other.  I find if parties can act in a civil manner towards each other, the process has done little damage.

So why do so few people opt for the sword instead of the lily?    Why do people end up in court instead of the mediator’s conference room?... [read more]

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ALIMONY REFORM ACT OF 2011            September 27, 2011

On September 26, 2011 Governor Deval Patrick signed into law the Alimony Reform Act of 2011.  On September 23, 2011 I attended a seminar sponsored by the Massachusetts Chapter of the American Academy of Matrimonial Lawyers and Flaschner Judicial Institute at Suffolk University Law School to learn about the new and unique terms now comprising the word alimony.  Alimony is now designated into four separate categories consisting of:  General Term Alimony, Rehabilitative Alimony, Reimbursement Alimony, and Transitional Alimony.  While these four categories are not foreign under the law, these categories as well as the defined length of time that one can receive or be obligated to pay alimony is unique under the law.  Since the early days of Massachusetts incorporation and John Adams’ writing the first alimony statute has such a change in alimony come about in this Commonwealth.

I welcome the opportunity to discuss with you what affect this statute will have upon you.  Whether you are currently paying alimony or receiving alimony pursuant to a probate court judgment, or you are currently litigating the issue of alimony, this new law can have an impact upon your situation.  If I can be of service to you, please do not hesitate to call me.