Court Decisions

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
Keep reading
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

TAGS:
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
Keep reading

“We have been together for so long, it is as if we are married.” In a small number of jurisdictions, including nearby Rhode Island, a couple can be legally recognized as being married, without any formal registration of a civil or religious marriage. This legal concept is often referred to as a common law marriage. Massachusetts is one of a majority of states in which common law marriage is not available. Nevertheless, some of the principles of common law marriage can be applied in Massachusetts divorce cases, particularly those in which alimony is at issue. For example, when considering the length of the marriage in a divorce case, Massachusetts courts have the authority, under limited circumstances, to include months or even years prior to a legal marriage as part of the overall length of the marriage. The effect of this artificial extension to the marriage length can be significant: the longer the marriage, the longer the potential duration of alimony.

The Massachusetts Alimony Reform Act of 2011 provided in its definition of “length of the marriage” that the marriage length shall be calculated as the number of months from the date of the legal marriage to the date of … Keep reading

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

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