Court Decisions

Catherine Spanu, Burns & Levinson

A lot of emotions and impulses can arise during a divorce, and it’s critical to avoid any behavior that you may regret– including in the courtroom. What’s at stake? Credibility, time, money, custody, and peace of mind, to name a few. Below, read the top 10 behaviors to avoid during a divorce.

  1. Do not put anything in writing that you wouldn’t want to have read aloud in court.

    This means no harsh text messages or emails to your spouse, and no nasty messages to friends and family about your spouse either. If you are upset or overwhelmed and need to vent, speak to a therapist or other mental health professional, or, if this isn’t possible, a trusted friend or family member in a private location (and never vent to your children about their parent or stepparent).

  2. Do not put any tracking devices on your spouse’s car or electronics.

    Even if you suspect them of having an affair, installing tracking devices or spying on them or their friends will not produce any information that is valuable enough to risk your credibility in court. This type of behavior is frowned on by judges, and infidelity – without something else such as

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Griffin v. Kay: A Cautionary Tale in How Your Separation Agreement Is Worded

When spouses reach agreement on terms for a divorce, a written settlement document – commonly known as a Separation Agreement – is prepared. Parties then decide whether the agreement will either “merge” into the Judgment of Divorce or “survive” as an independent contract. I have written about how your election impacts your ability to modify provisions in the future.

The recent decision in Griffin v. Kay is an excellent cautionary tale about making sure that the merger or survival language is clear and that both you and your spouse agree on what that language means.

Geraldine Griffin and Harry Kay divorced in 2004 and entered into an agreement calling for Harry to pay alimony of $90,000 per year until the death of either party or Geraldine’s remarriage. Their agreement provided as follows relative to merger or survival of the alimony provisions:

Notwithstanding the incorporation of this [a]greement in the [divorce judgment], it shall not be merged in the [J]udgment, but shall survive the same . . . retaining its independent significance as a contract between the parties. Provided, however, in the event of a material negative and involuntary change in the circumstances of either party, that party may seek Keep reading

No Prenup? A 101 Guide to Postnups

More and more couples are electing to sign prenuptial agreements before their big wedding day, yet some can’t agree, don’t want to, or don’t have time to do one beforehand. After all, some people continue to believe that asking for a prenuptial agreement indicates that they expect the marriage to fail. Even if that is not the case, discussing a prenuptial agreement can be a difficult conversation to have during one of the happiest times of a relationship, making it problematic for some couples to agree on whether a prenuptial agreement makes sense for them.

Suppose you did not sign a prenuptial agreement before the wedding but wish to set forth financial rights and obligations between you and your spouse during your marriage or in the event of divorce or death. A postnuptial agreement may be an option for you to consider.

Below are some things to think about when considering a postnuptial agreement.

What is the difference between a prenuptial agreement and a postnuptial agreement?

A prenuptial agreement is a written contract signed between parties intending to marry. It outlines their financial rights and obligations if the marriage ends due to death or divorce.

People often enter into … Keep reading

Can We Divorce Even if My Partner Is Pregnant?

What do Bridget Moynahan, Tiki Barbar, and Denise Richards have in common?  They (or their spouse) were all pregnant while going through a divorce.

Divorce is never easy.  Divorcing while pregnant adds another complication.  In some states it is not even possible to finalize the divorce while a party is pregnant.  However, in Massachusetts, although expecting parents are permitted to finalize a divorce, there are certain obstacles about which a divorcing, expecting parent should be aware.

1. There is a legal presumption that a child born to a woman during a marriage is the child of her spouse.

Pursuant to Massachusetts General Laws, Chapter 209(C), section 6, a man is presumed to be the father of a child if he is married to the mother at the time of birth of the child or if the child is born within 300 days after the marriage is terminated by death, annulment or divorce. (While the terms man and woman are contained in the statute, this law applies to same-sex couples, as well.) The husband’s name will automatically be placed on the birth certificate of the child, even if the husband is not the biological parent.  It then becomes the burden … Keep reading

Divorce Law Monitor Blog Robin Lynch Nardone

Divorce Law Monitor Blog Robin Lynch Nardone

Alcohol consumption is widespread in American culture. A 2020 study conducted by the Centers for Disease Control found that two-thirds (66.3%) of American adults consumed alcohol in the past year, with 5.1% of them admitting to engaging in regular heavy drinking.

The likelihood of divorce triples for couples where one party struggles with alcohol. According to some statistics, more than 14.5 million Americans suffer from alcohol abuse disorders – defined by the National Institute on Alcohol Abuse and Alcoholism as a chronic relapsing brain disorder characterized by an impaired ability to stop or control alcohol use despite adverse social, occupational, or health consequences.

Study data reflects that more than 7.5 million children in the United States live with a parent who suffers from an alcohol abuse disorder.

How are children protected during a divorce? The Court always strives to maintain a parental relationship while also protecting the child(ren) from harm. When a parent’s alcohol use impairs their ability to care for a child physically and/or emotionally during or after a divorce, the Court will intervene.

Interventions can include:

  • Requiring a parent to maintain sobriety in order to exercise parenting time, which is monitored through random urine screens or the
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Divorce Litigation: Preparing for a Deposition or Trial Testimony

If your divorce goes to court, what you say will make a difference, and your opportunity to speak may include both deposition and trial testimony. What are these procedures, how do they differ, and how can you best prepare? Attorneys Tiffany Bentley and Ronald Barriere will demystify the process, covering what to do and what to avoid, and what to expect from in-person versus remote testimony via Zoom.

Click here to watch the full webinar.… Keep reading

How to Obtain a 209A Abuse Prevention Order During the COVID-19 Pandemic

Abusers like to isolate their victims – closing off relationships with trusted friends and family who can offer another perspective or a place of shelter from abuse.  Stay-at-home directives issued to flatten the curve of COVID-19 are giving some people cherished time at home with family, while it is trapping others with their abusers.  As my colleague, Andrea Dunbar, recently wrote, Courts in the Commonwealth of Massachusetts remain available for those in need of protection from abuse. But which Courts are available and how can they be accessed by those suffering intimate partner abuse?

All District Courts, Probate and Family Courts, as well as the Boston Municipal Court have jurisdiction to enter 209A Abuse Prevention Orders.

  • There are 61 District Courts in the Commonwealth of Massachusetts. You can find the District Court that serves your home address here.
  • There are 18 Probate and Family Courts in the Commonwealth of Massachusetts. You can find the Probate and Family Court that serves your home address here.
  • The Boston Municipal Court has 8 locations serving the City of Boston. You can find the BMC locations here.

To obtain an initial 209A Abuse Prevention Order, forms can be emailed … Keep reading

With Chaos, Comes Opportunity – Court Initiatives During COVID-19 That Hopefully Will Continue to be Implemented for Years to Come

As someone who has repeatedly sought to bring some levity to my articles on the topic of divorce, an objectively life-altering event, I find myself contemplating how the current COVID-19 pandemic will shape our lives, most importantly, but also the divorce process in the years to come. Despite working for four years as a public health professional in bioterrorism and emergency preparedness for my native Los Angeles County, I am far from qualified to dispense advice on the long-term impact of the pandemic on our lives, so I will focus this article on the divorce side of things.

Sun Tzu famously wrote in The Art of War, “in the midst of chaos, there is opportunity.” As a quick aside, I think that I once used that quote as an away message on my AOL Instant Messenger account, probably in reference to a fizzled high school romance or something. See, levity. Anyway, while I usually reserve famous quotes for ironic and/or comedic purposes in lighter times, I think the quote well-encapsulates the glimmer of hope for positive change and adaptation in the middle of this incredible public health crisis.

The Family Law Bar (not the place selling $5 pitchers … Keep reading

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Merger and Survival of Divorce Agreements

When parties to a Massachusetts divorce settle their differences and come to an agreement, they enter into a written settlement document, commonly known as a Separation Agreement.  The Separation Agreement must then be presented to and approved by a judge in the Probate and Family Court. The judge will review the agreement and the parties’ financial statements to determine if the Separation Agreement is fair and reasonable, not the product of coercion or duress, and ensure that it makes adequate provisions for the care, custody, and support of any unemancipated children. If the judge approves the Separation Agreement, it is then incorporated into the Judgment of Divorce.  Beyond incorporation, the agreement will either “merge” into the Judgment of Divorce or “survive” as an independent contract.  The parties also have the option to request that certain provisions of the agreement merge while other provisions survive.  All too often, I see unrepresented parties stare in bewilderment when asked by a judge if they intend for their Separation Agreement to merge or survive.

Provisions of an agreement that merge into a Judgment of Divorce are subject to modification upon a showing of a substantial and material change in circumstances.  Merged provisions can … Keep reading

Recent Changes to the Law Relating to Child Support and Health Insurance

On July 8, 2019, the Massachusetts legislature approved changes to the law surrounding orders for health insurance coverage in cases where child support is ordered. The statutes impacted include G.L. c. 208 (the divorce statute) and G.L. c. 209C (for children of unmarried parents). The law, entitled An Act Making Appropriations For The Fiscal Year 2019 To Provide For Supplementing Certain Existing Appropriations And For Certain Other Activities And Projects, provides for, among other things, the following:

  • If the Court enters a child support order, either parent may be ordered to maintain health insurance coverage for a child if such coverage is available at reasonable cost and is accessible to the child. Under the previous law, only the parent paying child support could be ordered to maintain coverage for a child, unless the parties otherwise agreed.
  • Health care coverage is deemed to be reasonable in cost if the cost to the party ordered to provide health care coverage does not exceed 5% of the gross income of that party. Further, private health insurance shall be deemed not available at reasonable cost to a parent whose gross income does not exceed 150% of the federal poverty guidelines for the family
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