Hi there,

As Massachusetts considers refining the law on alimony, the public commentary is huge.  It has made me think through exactly what I think about the current law and the proposed changes.  I have initially addressed this in the blog, as I recognize that making alimony payments (or not making them) is one of the truly hard and hot button issues in divorce.  There are both payers and payees who have been deeply hurt and aggrieved by the system.  Most of these individuals may well find this post unpalatable.  As I think about that, I am not sure anyone finds having to pay alimony a good thing.  It is however, often a necessary evil, and as an advocate if I represent the spouse who is paying, I try to get the amount and time frame as minimal as possible.   Alternatively, when I am the advocate for the recipient, I try to get the amount and time frame as broad as possible.  That is the joy of being a litigator – you get to argue both sides of every question, sometimes on the same day.

Joking aside, I firmly believe that setting parameters for judges to follow and then … Keep reading

Hi there;

Right now one of the more interesting discussions in matrimonial law in Massachusetts is how long should alimony last.  Currently, judges lack the authority to terminate alimony with any finality, due in part to the fact that unless there is an agreement between the parties that the court won’t be able to change the alimony provisions, any judgment regarding alimony is not necessarily final and often must be rather open-ended (or as we in the trade describe it alimony ends at death or the recipient’s remarriage).

This has resulted in a lot of anomalous situations, the most common of which has to do with retirement.  As a result, there is a move afoot to eliminate alimony upon the retirement of the payor spouse.  There is currently a case pending before the SJC which will determine how this goes. Boston Magazine had an interesting article on this recently.  However, as with so much in family law, there can be circumstances that require a different result, as well as the application of judicial discretion.  David Cherny, another prominent divorce attorney in Boston, had an interesting comment on Fox News in this regard.

As with so much else in divorce, … Keep reading

Guest post by colleague, Ronald Barriere, Esq., Associate at Burns & Levinson LLP.  Mr. Barriere is a member of the Firm’s Divorce & Family, Private Client and Probate & Trust Litigation Groups. 

There has been plenty of press in recent months about the woeful economy’s impact on divorces, but one of the most interesting I’ve encountered was in Details magazine.

So called “nesting” arrangements are uncommon during the pendency of a divorce action. Parties who would otherwise move out and secure a rental property or – if their means allow – purchase a new property, will sometimes stay in the marital home out of concern for the children’s transition or for fear that they will forfeit their right to the marital home by leaving. However, what is less common is the situation where parties choose to remain under the same roof during the pendency of the divorce – or even after a divorce is finalized – solely due to market forces. The article suggests that these arrangements may become more common as the recession continues, and poses the unanswerable question: “How do I move on if s/he won’t move out?”

Beyond the obvious emotional considerations of such … Keep reading

Hi There,

Below is a compilation of the divorce process in 10 steps.  I’ve done a comprehensive post on each step, but decided to put them all together in one place.  Clicking on each title will bring you to the separate posts.

Step #1: The Complaint for Divorce, An Aptly Named Document
For most divorcing couples the legal process begins with filing what is called the complaint. This is a form which sets out the basic information the Court and the other side need. In addition to the obvious, it asks where you last lived together as this tells the court whether or not you have filed in the right county and whether Massachusetts has jurisdiction.

Step #2: Don’t Change Things
When the complaint for divorce is filed, the automatic restraining order on assets immediately applies to the filing party and as soon as the other side is served with the complaint the restraining order likewise then applies to him or her.

Step #3: Temporary Orders; The Road Map for the Future
After the defendant has been served or has entered an appearance, one or both parties usually file a motion asking the court for temporary orders. These deal with important issues.

Step Keep reading

Guest post by Lisa M. Cukier, Esq., Partner at Burns & Levinson LLP. Ms. Cukier concentrates her practice in all aspects of probate litigation, fiduciary litigation, planning & litigation for blended families, same-sex couples, guardianship, conservatorship, mental health law, elder law and domestic relations.

You are divorced… but wait, if you unexpectedly pass away, does your ex still have rights to your estate?

One spouse’s waiver, in a divorce or separation agreement, of an interest in beneficiary designations is not sufficient to bind the plan administrator, who is obligated to distribute the funds according to the beneficiary designation, even if the parties are divorced at the time of death. In fact, a spouse’s waiver of her or his interest in the other’s life insurance or retirement plan or assets designated as “TOD” (“Transfer On Death”), which assets are retained in the division of property in the divorce, will likely be ineffective. On the death of the person who made the beneficiary designation, the former spouse will receive the death benefit. You must take the additional step of revoking or changing the designation of your former spouse as beneficiary of such accounts, assets, and plans.

Although a divorce may … Keep reading

Hi there,

Since we learned yesterday that Massachusetts Attorney General Martha Coakley is filing a law suit against the federal Defense of Marriage Act (DOMA), speculations have been flying about what this means and what will happen. The lawsuit questions the constitutionality of Section 3 of the law, which defines the word "marriage" as "a legal union between one man and one woman as husband and wife."

Why?
We just celebrated the 5 year anniversary of allowing same-sex marriage in Massachusetts. Since then, at least 4 other states (Maine, Vermont, Connecticut and Iowa) have legalized gay marriage. Even though gay marriage is recognized in these states, it is still not recognized at the federal level.  This causes problems on many levels – taxes and adoption of children to name just two. According to the Boston Globe, “The suit filed in US District Court in Boston claims that the Congress, in enacting the DOMA, ‘overstepped its authority, undermined states’ efforts to recognize marriages between same-sex couples, and codified an animus towards gay and lesbian people.’”

Issues
Gay and lesbian married couples struggle with very different tax treatment as the federal government, the main taxing authority, doesn’t recognize gay marriage due … Keep reading

After reading the article, “Lawyer reports twice as many calls about elder financial abuse” I asked my colleague Lisa Cukier to write a guest post, as she has years of experience dealing with this issue. This type of problem seems to surface when families are under stress.

Hope this is useful,

Best,
Nancy

Guest post by Lisa M. Cukier, Esq., Partner at Burns & Levinson LLP.  Ms. Cukier concentrates her practice in all aspects of probate litigation, fiduciary litigation, planning & litigation for blended families, same-sex couples, guardianship, conservatorship, mental health law, elder law and domestic relations.

Unfortunately it is not uncommon for friends, family and home health companions to exploit elders for their money and property. All too often, people step into an elder’s life in their final years, initially offering help, but later insidiously swaying elders’ thoughts about family members and creating fear about being placed in a nursing home or about the government taking the elders’ assets. These folks who may have had good intentions at first, later insinuate themselves into others’ estate plans and convince elders to gift them money or deed real estate over to themselves. Sometimes, elders feel dependent and … Keep reading

Hi There,

If you are one of the approximately 95% of couples whose divorce will settle by agreement, be grateful; for the remaining 5%, this post is the barest of bare-bones descriptions of the process.

Trials are very artificial creatures and the preparation immediately leading up to them is easily as long and costly as the trial itself.  You should expect to spend time with your attorney getting prepared for trial, going over the questions she will ask you and preparing you for cross examination.  She will of course be preparing exhibits and the questioning of other witnesses as well.

The trial itself follows a clear set of rules, the plaintiff’s attorney and the defendant’s attorney make opening statements, then the plaintiff’s attorney calls her first witness and asks him questions, this is called direct examination. Then the defendant’s attorney has the opportunity to cross examine the witness.  Then the plaintiff’s attorney has the opportunity to clarify (or try to fix) any damage done on cross and generally this then is repeated with the second witness, etc. This continues until the plaintiff has finished putting in her case.  Then it is the defendant’s turn and the same process continues.  … Keep reading

Hello there,

The uncontested divorce hearing is often a culture shock to the participants.  While there is a great deal of ceremony around the actual act of marriage, divorce itself has all the charm of a trip to the Registry of Motor Vehicles.

Everyone needs to attend the hearing.  When the case name is called the clients and their attorneys stand at the counsel table.  The Judge may or may not read the agreement.  The attorney for the plaintiff (remember the plaintiff?  He or she is the one who filed) asks her client a series of very simple questions, name, address, date of marriage, date of separation, etc.  The Judge will ask the same questions if there aren’t attorneys present and then the Judge will ask each party if the financial statements are accurate and if they believe the other party’s financial statement is also accurate and then the Judge asks a series of questions designed to preclude anyone in the future attempting to set the agreement aside due to buyer’s remorse, i.e. do you understand the agreement?  Did anyone coerce you into signing?  Do you think it’s fair and reasonable? ..etc. Then the Judge explains how long it will be ’til the divorce is final (depending on … Keep reading

Hi there,

Done well, by both counsel and the judge, the pretrial conference is a great opportunity to settle a divorce case. That is if you have not already settled it at the four way meeting, in which case you probably will get divorced on the day of the pretrial conference.

If you haven’t settled, this is the time for the attorneys to write a memo that tells the story of your circumstances and sets forth in the best light possible what you want, and why you want it.  By the time of the pretrial there should be no open questions as to values or assets.  If there has been a custody issue the Guardian Ad Litem report should be in and should have been reviewed. Both sides must file an up to date financial statement and should file an asset chart as well.

The idea behind the pretrial conference is that the judge can read the memos and the financials; ask the lawyers if they have anything to add then the judge can tell everyone what he or she thinks about the areas of dispute. Then the parties and their lawyers (who hopefully have also brought draft agreements … Keep reading