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Boston Divorce and Family Law Blog

"Self-Modifying" Alimony Provision Struck Down by Massachusetts Appeals Court

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.

Appeals Court Reverses Conflicting Contempt Finding

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. 

The Appeals Court considered language in this case set forth in the Trial Court's temporary order that obligated the husband to pay to the wife "a sum equal to one-third of his year end distribution after taxes."  By way of background, in early 2009, the husband received his 2008 year-end distribution, and after deducting an appropriate amount for taxes (i.e, 40.3% for his combined federal and state tax rate), the husband transferred to the wife one third of the remaining amount. The wife initiated a contempt action against the husband, arguing that the husband failed to transfer to her one-third of his year-end distribution.  The Trial Court, however, held that the husband's deduction for taxes was appropriate, and accordingly, the husband was not guilty of contempt.  

Rights of First Refusal in Parenting Plans

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.  

What are the Procedural Differences Between a Probate and Equity Case?

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.

First, there is a difference between what needs to be filed.  With a probate case, the MUPC requires a party (the petitioner) to file a petition in order to initiate the case.  The petition is a court form available on the Probate and Family Court's website.  On the other hand, an equity case begins by a plaintiff filing a complaint and receiving a summons from the court.  There is no court form, and the plaintiff is responsible for researching and drafting the substantive complaint and requested equitable relief.

Second, there is a difference between what parties receive notice of the lawsuit.  With a probate case, the petitioner is required to give notice to all "interested persons," as defined by the MUPC.  The notice requirement is satisfied either by (1) obtaining and filing the assents of the interested parties, or (2) by mailing the court citation to all interested parties and publishing it in the local newspaper within a time designated in the court citation.  Interested parties then have the opportunity to voluntarily participate in the case by filing with the court an appearance with or without an objection by a certain date (the "return date," which is stated in the court citation).  If any interested party files an objection, the case is considered contested.

On the other hand, the only party that receives notice of an equity case is the defendant.  The defendant receives notice when the plaintiff serves the defendant with a copy of the complaint and summons.  The defendant must respond to the complaint by filing with the court either an answer (with or without counterclaims) or a motion, and this must be completed within twenty days of service.  If a response is not filed, the defendant is subject to default.  Thus, unlike an objection in a probate case, the defendant's participation in an equity case is mandatory.

Third, there is a difference in the timeframe that the court will process the case.  If a probate case is uncontested (i.e., the petitioner has filed all of the assents of the interested parties or, after receiving notice through the citation, no interested party files an appearance and objection to the petition by the return date), the court assigns the case to a three to six month track.  This timeframe applies to the probate of wills, administration of estates, accounts, and all other probate cases except for guardianships and conservatorships.  If the probate matter is contested (i.e., an interested party files an appearance and objection to the petition by the return date), the court assigns the case to an eight month track.

On the other hand, the court assigns a complaint in equity to a fourteen month track.  See Probate and Family Court Standing Order 1-06:  Case Management and Time Standards for Cases Filed in the Probate and Family Court Department (eff. Apr. 3, 2006).

In sum, a litigant should consider these procedural differences when deciding whether to file a probate or equity case with the Probate and Family Court and what relief to seek from the court.  While some types of cases must be filed as either a probate or equity case, other types of cases - such as termination of a trust or removal of a trustee - could be filed either as a probate or equity case.  The above differences concerning the type of pleading filed, notice, and timeframe should factor into a litigant's overall case strategy.

Comic Demonstrates Child-Centric Approach to Divorce

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. 

In a recent NPR interview, Louis C.K. discussed his role as a divorced dad.  He described the balance and harmony that can be achieved when children enjoy separate but quality time with each of their parents, when children aren't torn by conflicting loyalties, and when they aren't witnesses to, and feeling like the cause of, the conflict between their parents in a bad marriage.  He also talked about taking good care of himself, creating a positive environment in which his children will flourish while they are with him, and how providing his children with a "good home" is a major motivating factor in his life.    

Highest Court Rules that Temporary Alimony is "Separate and Distinct" from General Term Alimony

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.

Proposed Bill Prohibits Sex in Marital Home

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." 

New MA Domestic Violence Bill

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.

Child Abduction: The FBI's Child ID App

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. 

Who gets the engagement ring?

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."

The starting point in the legal analysis is a Massachusetts case from the late 1950's. In DeCicco v. Barker, 339 Mass. 457, 458, 159 N.E.2d 534 (1959), the court stated "[w]here a ring is given in contemplation of marriage, it may be a gift in the nature of a pledge, given upon the implied condition that the marriage occurs."  The court went on to explain that "where an engagement is terminated without the fault of the donor, he or she may recover the ring."  

Sally & Fitch LLP
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