Court Decisions

New Decision Fine-Tunes Mass. Removal Law

In some divorces/post-divorce situations, one parent wants to move with the parties’ children to another state, or even another country. This is called “removal,” and requires either the permission of the other parent or the approval of the probate court. Removal is commonly driven by a new job or spouse, a desire to return to a previous hometown in which friends and extended family live, or a need to move to a more affordable location.

Massachusetts’ highest court recently released a new removal decision in the case of Miller v. Miller. For many years, we have had two standards for the court’s analysis of whether to allow removal: the “real advantage” standard under Yannas v. Frondistou-Yannas—where one parent has primary physical custody of the children—that slightly favors the custodial parent seeking removal; and the “best interests” standard under Mason v. Colemanwhere the parties share physical custody (roughly, 50/50)—that puts the parties on equal footing. Until now, cases typically fell under one standard or the other, based on existing custody stipulations, orders, or judgments.

In Miller v. Miller, though, the Supreme Judicial Court has fine-tuned the law a bit. From now on, probate courts must … Keep reading

Retroactive Application of Durational Limits is Constitutional

In the highly awaited decision of Van Arsdale v. Van Arsdale, the Supreme Judicial Court has ruled that application of the durational limits contained within the Alimony Reform Act to alimony agreements predating the Act is not unconstitutionally retroactive.

William and Susan married in 1979 and divorced 18 years later in 1997.  At the time of the divorce, alimony in Massachusetts had no durational limits.  And so, William and Susan agreed at the time of the divorce that William would pay alimony to Susan until Susan remarried or until one of them died. They also agreed to review the amount of alimony when the children emancipated and when William retired. In 2015, after the enactment of the Alimony Reform Act, William asked the court to terminate his alimony obligation based upon the durational limits contained in the Act and because he had retired from full time employment. For a marriage of 18 years, the Act provides that alimony shall continue for not longer than 80% of the number of months of the marriage. Susan argued that applying the durational limits retroactively to her agreement with William, which was entered into before the law went into effect, was unconstitutional.… Keep reading

durational limits

durational limitsThe Supreme Judicial Court’s recent decision of George v. George provides guidance in applying the durational limits contained in the Alimony Reform Act.

The Alimony Reform Act, which went into effect in March 2012, provides that all alimony awards that predate the Act are deemed “general term alimony.” Under G.L. c. 208, §49(b), general term alimony awards end on a date certain based upon the length of the marriage, except upon a written finding by the court that deviation beyond the time limits is required “in the interests of justice.”  Many alimony  payors who file complaints to terminate alimony based on the durational limit are met with the defense that it is in the interests of justice for alimony to continue beyond the durational limits. In the November 28, 2016 decision of George v. George, the Supreme Judicial Court (SJC) sets forth guidelines for how a judge of the Probate and Family Court should apply the “interests of justice” standard.… Keep reading

trust shield

trust shieldHi there,

I continue to be amazed by the distinguished group of divorce and probate lawyers I have the privilege to work with at Burns & Levinson. Today’s decision on Pfannenstiehl v. Pfannenstiehl, a case which will guide family financial planning across the country, is a credit to their hard work and dedication. We’re proud to bring you part two of this story which our contributor Tiffany Bentley brought to our attention back in April. This case was deemed “unwinnable” by many, so it is hugely important to our client as well as a celebrated achievement for our team.

Best,
Nancy


Almost exactly four months ago, I blogged with great pride about the compelling arguments from my colleague, Bob O’Regan, to the Supreme Judicial Court in the matter of Pfannenstiehl v. Pfannenstiehl. Today, I blog with even greater pride about the SJC’s unanimous decision in our client’s favor.

In Pfannenstiehl, initially both the Trial Court and the Appeals Court went to great lengths to ensure that the wife would benefit from an irrevocable trust established by her (now former) husband’s father. The husband had no access to or control over the trust. Assets and … Keep reading

idivorce smartphone ipad iphone
Your morning social media scrolling might get you into trouble.

An often-stated truth is that you shouldn’t access the email of others. Here, “others” means the person you have divorced, are now divorcing, or plan to divorce in the not too distant future. No matter how often this is said, it’s always worth repeating. Don’t snoop in other people’s email accounts!

Like most things, it’s more complicated than that. For instance, there are some minor exceptions, such as “authority to access.” Were you ever granted permission to access the email account? Was authority granted and later rescinded? If you’re even the slightest bit unsure of the answer to these important questions, then the answer is, of course, do not access the account!

However, what happens when this access to information is applied to all the information out there on the web? Is it possible that you could get in trouble for accessing someone’s social media accounts, if they have rescinded permission for you to do so?… Keep reading

gavelThe latest in a series of cases interpreting and clarifying the Alimony Reform Act of 2011 has just been decided. Duff-Kareores vs. Kareores was decided by the Supreme Judicial Court on June 15, 2016.

What’s the Story?

The parties were married in 1995, had two children and divorced in 2004. They then lived separately, complying with their divorce agreement, until they began living together as a family again in 2007. They remarried in December 2012. Alas, things didn’t work out as planned, and the wife filed for a second divorce in June of 2013.

The Alimony Decision

The trial judge held that the length of their marriage, for the purpose of determining the alimony term under the Alimony Reform Act, ran from the date of their first marriage till the service of the second divorce. This included the period when they were living separately, under the terms of a divorce agreement, in the calculation of time that alimony in the new divorce would last. Not surprisingly, this was appealed.… Keep reading

Hi there,

Earlier in 2016 our Private Client group happily welcomed Ann “Hether” Hetherwick Cahill as an associate. Hether’s practice focuses on probate and family court litigation, including will contests, removal claims, trust disputes, equity actions, guardianship and conservatorship proceedings, and family law. We’re pleased to feature some of her thoughts on the recent developments with the Alimony Reform Act!

Best
Nancy

 

There has been a new development in the recent challenge to the Alimony Reform Act. As a backdrop, the landmark Alimony Reform Act (M.G.L. c. 208, sections 48-55), which went into effect on March 1, 2012, changed alimony awards by:

  1. Creating durational limits for payments.
  2. Terminating alimony when a payor reaches retirement age.
  3. Suspending, reducing or terminating an alimony obligation when a payee cohabitates. The Act allows for deviation from these timeframes based upon the circumstances of the case.

On January 20, 2015, the Supreme Judicial Court issued decisions in three cases (Chin v. Merriot, Rodman v. Rodman, and Doktor v. Doktor) interpreting the Act’s language to hold that the retirement and cohabitation provisions apply only prospectively to judgments entered after March 1, 2012 (the date on which the Act became effective).… Keep reading

On April 5, 2016, the collective eyes of Massachusetts divorce attorneys and estate planners were fixed on the Supreme Judicial Court, where the highly-anticipated oral arguments on “further appellate review” of Pfannenstiehl v. Pfannenstiehl took place.

The 2015 Appeals Court decision received national attention for its potential detrimental impact on the estate planning goals of families who desire to shield trust assets from divorce claims. In Pfannenstiehl, both the Trial Court and the Appeals Court went to great lengths to ensure that the wife would benefit, at least indirectly, from an irrevocable trust established by her soon-to-be-ex-husband’s father even though the husband had no control over the trust and could receive distributions only at the discretion of the trustees. The husband had no present, guaranteed, enforceable interest to receive or use assets or income from the trust. The trustees’ discretion was limited to making distributions under an “ascertainable standard” for a beneficiary’s health, education, maintenance and support. The Trial Court and Appeals Court decisions failed to account for the fact that the trustees did not make distributions to the husband for most of the marriage, and that the husband received distributions only during the final two years of … Keep reading

More Alimony Reform in Massachusetts?

In March 2012, Massachusetts law on alimony was reformed and codified as General Laws Chapter 208, sections 48 – 55. A judicial hearing has been set for Monday, March 7, 2016 at 1 p.m. at the State House seeking further reform of the alimony statute.

The 2012 alimony reform provided for:

  • Durational limits.
  • Termination of alimony upon a payor reaching retirement age.
  • Reduction or termination of an alimony obligation when a recipient cohabitates.

In 2015, the Supreme Judicial Court issued decisions in three cases interpreting the alimony law and held that only the durational limits apply to alimony cases decided (or settled) before March 1, 2012, while the retirement provisions and cohabitation provisions do not.… Keep reading

Tying the knot... again.
Tying the knot… again.

Have you ever wondered if a divorce is always final or whether a divorce judgment can be “undone” or “modified?” The short answer: Like everything else, it depends.

In general, divorce and divorce judgements are final. You can’t “undo” a divorce, so to speak. The finality of a divorce is critically important. Imagine the horror if your spouse was suddenly able to reverse the divorce decree and you found yourself still married!

Why would you want to undo divorce decrees in the first place? Common reasons include:

  • You reconciled after all
  • You didn’t like the trial judgement
  • You believe the terms of the final divorce settlement were unfair
Keep reading