Law Blog

Tuesday, February 26, 2013

Social Security Benefits and DOMA: Know Your Rights, Protect Your Benefits

IRSAs we all know, the Defense of Marriage Act disqualifies same-sex married couples from the innumerable federal benefits of marriage, including social security benefits.  Two federal lawsuits are challenging the legality of DOMA, one of which is presently before the United States Supreme Court.

Boston-based GLAD (Gay & Lesbian Advocates & Defenders) has created a comprehensive resource for same-sex couples outlining the additional benefits that same-sex couples and their children would otherwise be entitled to in the absence of DOMA.  As GLAD's publication, "Social Security Benefits And the Defense of Marriage Act: Can I Do Anything Now to Preserve My Rights? YES", explains:

In the Social Security context, DOMA means that a person married to someone of the same sex cannot claim the Social Security benefits that might be due to a spouse, including:

• the spousal retirement benefit;
• the spousal disability benefit;
• the lump-sum death benefit; and
• the survivor benefit.

DOMA also can limit a child’s access to Social Security benefits. For example, when a married working parent dies, DOMA means that a child of the marriage may be denied benefits unless the worker is that child’s birth or adoptive parent or the family lives in a State where the child could inherit from that parent under the State’s intestacy law (this should include all States that permit same-sex couples to marry and Washington, D.C. as well as States that recognize marriages of same-sex couples from other states).

Download the Publication:  GLAD Social Security Benefits and DOMA

GLAD's publication also describes what same-sex couples can do now in order to preserve their access to social security benefits in the event that DOMA is either repealed or deemed unconstitutional, as many expect that it will be.  In some instances, the law mandates that an applicant apply for social security benefits within a specific time frame, for example within 2 years of the death of a spouse.  Under some circumstances, GLAD explains, it may make sense in certain circumstances to apply for benefits now - expecting your claim to be denied - in order to preserve important rights of appeal in the event that DOMA is overturned.

If you are in a position to access benefits under social security, and you believe that your right to benefits may be impacted by DOMA, reach out to your legal and tax professional.  GLAD encourages individuals to reach out to them with questions on their InfoLine: (800) 455-GLAD.

Vaughn-Martel Law also invites concerned individuals to contact our own Emily Towne McNeil to discuss your estate planning, including social security benefits to which you believe you may be entitled or how to preserve them in the event of a repeal of DOMA.


Sunday, February 24, 2013

Vaughn-Martel Law's Jessica M. Walsh Named to Massachusetts Domestic and Sexual Violence Council

Earlier this month, Attorney Jessica M. Walsh was voted into membership of the Massachusetts Domestic and Sexual Violence Council ("DSVC").  The DSVC is a Boston-based organization comprised of experienced lawyers and advocates, hailing from various law firms, legal service organizations, and community support centers in Massachusetts.

The DSVC works to promote awareness of domestic and sexual violence and assist the Massachusetts legal community in working appropriately and successfully with survivors.  DSVC members are chosen because they possess unique knowledge and expertise in working with survivors of domestic violence and sexual assault, specifically in the legal context.

Vaughn-Martel Law congratulates and thanks Attorney Walsh for her continued advocacy on behalf of survivors of sexual assault and domestic violence.


Monday, January 7, 2013

New Massachusetts Law Provides Increased Protections to Renters who Experience Domestic Abuse or Sexual Violence

On January 3, 2013, Governor Deval Patrick signed a bill designed to give survivors of domestic violence, stalking and sexual assault the legal ability to break a lease agreement or tenancy when a survivor’s living situation is no longer safe.  Under the new law, a tenant or co-tenant (a person who has entered into an oral or written lease or rental agreement with the owner) may terminate a rental agreement or tenancy and move out of the residence after delivering written notice to the owner that a member of the household is a survivor of domestic violence, rape, sexual assault, or stalking.  Notification must either be given within 3 months of the most recent act of violence or a member of the tenant’s household must be reasonably in fear of imminent serious physical harm.

A landlord will have the right to request proof of the status as a victim including the name of the perpetrator.  Any information given to the owner as proof must be kept confidential by the landlord.  Under the law, a tenant who is not a perpetrator will be discharged from liability for rent or use and occupancy 1 full rental period (and not less than 30 days) after the quitting date. The quitting date is the date that a tenant surrenders his or her interest in the premises.  If the tenant has vacated the premises, the quitting date is considered to be the date notice is given to the owner of the intent not to return to the premises.  If the tenant is still living on the premises, the quitting date is considered to be the date the tenant intends to vacate the premises or the actual date the tenant vacates after providing notice.

For purposes of this law, domestic violence is characterized as the occurrence of 1 or more of the following acts between family or members of a household:

  1. Attempting to cause or causing physical harm;
  2. Placing another in fear of imminent serious physical harm;
  3. Causing another to engage involuntarily in sexual relations by force, threat or duress.

Rape, sexual assault, and stalking retain their legal definitions under the Massachusetts general laws.

If a tenant is experiencing an abusive living situation and submits written notice to the landlord that they wish to terminate their tenancy, they must move out within 3 months of the written notification.  After the three month period expires, the notice to terminate the rental agreement or tenancy is void and they continue to be responsible for all rental payments.  If they still wish to move, they must submit a new notice to the landlord and make sure to move out within the next three months.

As stated above, an owner may request proof from the tenant of the alleged violence. Proof of status as a victim can be satisfied by production of any 1 of the following documents:

  1. A copy of a valid protection order (commonly called a restraining order) under chapter 209A or 258E;
  2. A record from a federal, state or local court or law enforcement of an action of domestic violence, rape, sexual assault or stalking and the name of the perpetrator, if known; OR
  3. A written verification from any other qualified third party (such as a police officer, lawyer, victim witness advocate, DCF employee, etc) to whom the tenant, co-tenant or member of the tenant or co-tenant’s household reported the violence; provided, however, that the verification shall include the name of the organization and include the date of the violent act(s), and the name of the perpetrator if known; and provided further, that any adult victim who has the capacity to do so shall provide a statement, under the penalty of perjury, that the incident described in such verification is true and correct.

A valid restraining order or protection order is not a requirement to avail yourself of the protections of this new law; however it would act as sufficient proof to an owner in the event an owner demands proof.

The passage and signing of this law is a concrete and public declaration that domestic and sexual violence will not be tolerated in our communities.  This law allows survivors to be let out of their leases without fearing that landlords will take them to court and sue them for the remainder of the money owed on their lease.  Massachusetts, and Boston specifically, is home to a large number of renters due to the prevalence of colleges and graduate schools.  This law especially gives security to these younger student renters, often living on lower incomes, and in multiple-tenant living situations, by enabling them to escape dangerous and potentially life threatening abuse without the added financial and legal burdens of being sued by a landlord.  The reality is that, in the past, survivors may have remained trapped, risking their lives on a daily basis with an abusive household member, and being told by a landlord that they were legally and financially obligation to remain locked in their tenancy.

As a practical matter, the new law effectively provides tenants with a defense to suits by landlords for unpaid rent and for breaches of lease agreements.  In other words, tenants who are sued by their landlords for unpaid rent or breaches of their lease agreement may have a defense if they can demonstrate to a court that they have carefully followed the proscriptions of the new law.  A properly drafted lease agreement should still permit the landlord to pursue the perpetrator tenant for all rent owed under the lease while releasing the abused tenant.  While the contours of the new law are unknown and will certainly cause some amount of confusion among tenants, landlords, and courts, it will give survivors a choice they did not previously have available to them.

Aside from relieving certain people from rental obligations, the bill also prevents landlords from refusing to rent to someone because of his or her victimization and authorizes lock changes at a tenant’s expense.

The attorneys at Vaughn-Martel law specialize in issues of tenant-landlord law, domestic and sexual violence, and safety planning.  Whether you are a tenant who believes that this new law may apply to you, or you are a landlord who is unsure of how to comply with its terms, we invite you to schedule a consultation with our office.


Thursday, November 15, 2012

Negotiating Health Insurance Costs In Your Divorce: What You Need To Know

Health insurance has been a hotly debated and discussed topic in the media this year.  One aspect of the health insurance discussion that is rarely addressed is the cost of health insurance in the context of divorce proceedings.  In fact, as health care expenditures increase, health insurance has a growing role in child support determinations.  This is particularly true in Massachusetts, where health care expenditures are growing more rapidly than other economic indicators such as wages, consumer prices, and per capita GDP.  (SOURCE: Massachusetts Health Care Cost Trends: Historical (1991 – 2004) and Projected (2004 – 2020), Massachusetts Division of Health Care Finance and Policy, November 2009.)

When determining child support obligations, the court will address whether the spouse that is paying the child support has health insurance coverage available to him or her at a “reasonable cost” that can be extended to the lower earning spouse and their children after divorce.  Since the passage of the 2006 health reform law, it is highly likely that they do.  In fact, approximately 98.1 percent of Massachusetts residents have health insurance coverage, including 99.8 percent of children.  (SOURCE: Massachusetts Health Reform: A Five-Year Progress Report, Blue Cross Blue Shield of Massachusetts Foundation, November 2011).  Additionally, Massachusetts law ensures that divorced spouses will continue to stay eligible on their spouse’s policy.  Mass. Gen. Laws Ann. ch. 32A, § 11A.  Specifically, Massachusetts does not allow health insurance companies to rescind eligibility for a divorced spouse on their ex-spouse’s policy just because they are divorced.  In fact, insurance companies cannot rescind coverage based on their status as divorced from the policy holder until the divorced spouse remarries.  Even if the policy holder remarries, the divorced spouse will continue to be eligible to stay on the policy.

Once the court determines that health care coverage is available at a reasonable cost, it typically has three options.  It can mandate that the person paying child support (1) exercise the option of additional coverage for the spouse and the children through their current health care insurer, (2) obtain separate coverage for the spouse and children, or (3) reimburse the spouse for the cost of health insurance.

If you are in a contested divorce, it is important to know what health insurance options exist in arguing that a spouse does, in fact, have coverage available to him or her at a reasonable cost that can be extended to you and your dependent children.  For those divorcing parties who are entering into an uncontested divorce, this information is vital to informed cost-sharing discussions with your spouse.


Wednesday, August 29, 2012

Manhattan Businessman Disinherits his Gay Son's Children; Legal Challenge Filed

As reported over the weekend by the New York Post, the son of a wll-known Manhattan businessman has challenged a provision in his father's will that disinherits his grandchildren unless they are born to a heterosexual married couple.  According to the New York Post:

The edict surfaced in the will of Manhattan businessman Frank Mandelbaum, who specified that none of his money should go to any offspring his son Robert might have if he is “not be married to the child’s mother within six months of the child’s birth.”

Frank Mandelbaum, who died in 2007 at the age of 73, is the founder of the ID verification company, Intelli-Check.  The late Frank Mandelbaum's will prompted his son, Robert Mandelbaum, a Manhattan Criminal Court Judge, to challenge the estate and to argue

that his longtime partner Jonathan O’Donnell is the only 'mother' their 16-month-old son, Cooper, knows. The couple married shortly after Cooper’s birth via a surrogate, entitling the child to a share in a $180,000 trust set aside for Frank Mandelbaum’s three grandkids, Robert declared.

According to the New York Post, Frank Mandelbaum's wife, Ann Freeman, stated in court papers that her "husband's will specifically prohibited such a child from becoming a beneficiary."  Such a child!

According to Robert Mandelbaum, his Father was well aware that he was gay, and noted that his long-time partner, O'Donnell, was included in family dinners and vacations.  Now, Robert and his husband O'Donnell are fighting in court to prove that Frank's will is discriminatory and in violation of state law and public policy.

"Requiring a gay man to marry a woman ... to ensure his child’s bequest is tantamount to expecting him either to live in celibacy, or to engage in extramarital activity with another man, and is therefore contrary to public policy,” the couple's attorney, Anne Bederka, wrote in court papers. “There is no doubt that what [Frank Mandelbaum] has sought to do is induce Robert to marry a woman."

In Massachusetts, and many other states, the maker of a will may dispose of her property in any lawful manner, so long as such disposition is not repugnant to law.  An individual may lawfully place conditions on bequests in his will, such as graduating from college or refraining from alcohol, and those conditions should be carried out by the courts so long as they do not contravene some positive rule of law, or are against public policy.  Damon v. Damon, 312 Mass. 268 (1942).

However, conditions that amount to a complete prohibition on marriage will generally not be enforced by the courts, and partial restrictions on one's ability to marry will be upheld only if reasonable.  What qualifies as a total or partial prohibition, and what is a "reasonable restriction", is very much open to debate.  In Gordon v. Gordon, 332 Mass. 197 (1955), the Supreme Judicial Court of Massachusetts held that a testamentary provision which disinherited any beneficiary who did not marry a person born of the Jewish faith constituted an enforceable and reasonable partial prohibition on marriage.  After all, the beneficiary could marry any suitable Jewish person he liked!

Is a testamentary bequest that disinherits a gay child unless he or she marries someone of the opposite sex a reasonable partial restriction on marriage, or does it amount to a complete prohibition on marriage for that gay individual?

In the end, controversial restrictions such as Frank Mandelbaum's are very likely to cost the estate and all beneficiaries a significant amount of money, emotional pain, and legal fees.  When you are preparing your estate plan, be careful that you are restricting gifts for the right reasons and that you are not inviting costly challenges to your estate when you are gone.

 

As reported over the weekend by the New York Post, the son of a well-known Manhattan businessman has challenged a provision in his father's will that disinherits his grandchildren unless they are born to a heterosexual married couple.  According to the New York Post:

The edict surfaced in the will of Manhattan businessman Frank Mandelbaum, who specified that none of his money should go to any offspring his son Robert might have if he is “not be married to the child’s mother within six months of the child’s birth.”

Frank Mandelbaum, who died in 2007 at the age of 73, is the founder of the ID verification company, Intelli-Check.  The late Frank Mandelbaum's will prompted his son, Robert Mandelbaum, a Manhattan Criminal Court Judge, to challenge the estate and to argue

that his longtime partner Jonathan O’Donnell is the only 'mother' their 16-month-old son, Cooper, knows. The couple married shortly after Cooper’s birth via a surrogate, entitling the child to a share in a $180,000 trust set aside for Frank Mandelbaum’s three grandkids, Robert declared.

According to the New York Post, Frank Mandelbaum's wife, Ann Freeman, stated in court papers that her "husband's will specifically prohibited such a child from becoming a beneficiary."  Such a child!

According to Robert Mandelbaum, his Father was well aware that he was gay, and noted that his long-time partner, O'Donnell, was included in family dinners and vacations.  Now, Robert and his husband O'Donnell are fighting in court to prove that Frank's will is discriminatory and in violation of state law and public policy.

"Requiring a gay man to marry a woman ... to ensure his child’s bequest is tantamount to expecting him either to live in celibacy, or to engage in extramarital activity with another man, and is therefore contrary to public policy,” the couple's attorney, Anne Bederka, wrote in court papers. “There is no doubt that what [Frank Mandelbaum] has sought to do is induce Robert to marry a woman."

In Massachusetts, and many other states, the maker of a will may dispose of her property in any lawful manner, so long as such disposition is not repugnant to law.  An individual may lawfully place conditions on bequests in his will, such as graduating from college or refraining from alcohol, and those conditions should be carried out by the courts so long as they do not contravene some positive rule of law, or are against public policy.  Damon v. Damon, 312 Mass. 268 (1942).

However, conditions that amount to a complete prohibition on marriage will generally not be enforced by the courts, and partial restrictions on one's ability to marry will be upheld only if reasonable.  What qualifies as a total or partial prohibition, and what is a "reasonable restriction", is very much open to debate.  In Gordon v. Gordon, 332 Mass. 197 (1955), the Supreme Judicial Court of Massachusetts held that a testamentary provision which disinherited any beneficiary who did not marry a person born of the Jewish faith constituted an enforceable and reasonable partial prohibition on marriage.  After all, the beneficiary could marry any suitable Jewish person he liked!

Is a testamentary bequest that disinherits a gay child unless he or she marries someone of the opposite sex a reasonable partial restriction on marriage, or does it amount to a complete prohibition on marriage for that gay individual?

In the end, controversial restrictions such as Frank Mandelbaum's are very likely to cost the estate and all beneficiaries a significant amount of money, emotional pain, and legal fees.  When you are preparing your estate plan, be careful that you are restricting gifts for the right reasons and that you are not inviting costly challenges to your estate when you are gone.

 

Wednesday, August 29, 2012

Until Debt Do Us Part: Who Inherits Credit Card Debt?

It is safe to say that America is experiencing a debt crisis.  Most of us have at least one credit card balance that just doesn't seem to be going down!  So what happens to our credit card balances when we die?

The good news is that, with some exceptions, surviving spouses and family members are not responsible for the leftover debt of their loved one.  The bad news is that our estate is responsible for our leftover debt.  That means that before anyone can inherit a single penny from the estate of a deceased person, all of his or her valid debts must first be paid.  Credit card companies are more than happy to collect money from the surviving family of a deceased credit card holder, and it is important to know as a general rule that you are not responsible for the debt of another - even your spouse.

As a recent article on Bankrate.com points out, there are exceptions that could leave you on the hook for someone else's credit card balance after that person's death.

Joint Cardholders v. Authorized Users

If you're a joint cardholder, meaning you co-signed for the credit card, you're liable for the debt. Parents sometimes do this for children who are just starting out, or adult children will co-sign with their elderly parents, perhaps to help keep track of expenses.

If you're only an authorized user, you're not liable when the cardholder dies. If you co-signed as a joint cardholder, then you just got a new credit card debt.

"Sometimes, people can be on a credit card and not even know it," says Pennsylvania attorney Linda A. Kerns. "Maybe when they filled out the credit card applications, (the joint cardholder) didn't even tell them." These accounts could show up years later, at the time of a death or divorce.

"I tell people to check their credit card reports regularly. Resolve it before a death or divorce or traumatic event," says Kerns.

Checking your credit report annually is easy and free, and is the best way to quickly challenge inaccurate information and take address accounts that are either joint or have been misreported as joint.

Custody of Credit Card Debts in Divorce

It happens too often:  One spouse agrees to pay off a joint card as part of a divorce settlement.  But if the ex doesn't do it or dies before the debt is paid and your name is still on the card, the credit card company may come looking for you.

Furthermore, according to Texas attorney Glen Ayers, if you live in a community property state, you'd better hope you didn't receive community property in the divorce. "That divorce judgment does not bind the credit card company. It's going to chase you," he says.

The credit card companies don't care what your agreement with your ex is - they just know that you are legally responsible to them for the debt.  It is extremely important to address all credit card accounts in your separation or divorce agreement, and to place clear deadlines by which all joint credit card accounts must be paid off and closed.  Better still, the responsible spouse should be made to produce evidence of that to the other spouse, or face charges of contempt.

Using a Credit Card After the Death of the Cardholder

Continuing to use a credit card as an authorized user after the cardholder's death could put you in big trouble.  "That's got criminal implications," says Ayers. "If somebody wanted to make a case of that, is that any different than picking up a card on the street?"

The same goes for using the card as an authorized user when you know the debt won't be paid.  For example, says Kern, "You'd be committing fraud if you knew a parent was near death and the estate didn't have money and you used it knowing it wouldn't be paid off."

Given the Various Exceptions, Time Limits, and Complicated Rules on What Constitutes Estate Property, Talk to an Attorney Before Paying

Even if you are not held personally liable for the credit card debt of a deceased loved one, you'll feel the effects of it if you're a beneficiary of the estate.  Debts will be paid from the estate before beneficiaries receive any distributions.  But the estate is only legally obligated to pay debts out of "estate property".  Property that is titled "jointly", including real estate, or where beneficiaries are named, including life insurance, may pass outside of the estate, and should not be made available to pay credit card debt.

In addition, there is a specific time period for creditors to file a claim against the estate.  When an estate is probated, creditors are prioritized, but only if they file appropriate notices within the statutory period.  If they don't, they could be out of luck.

Credit card debt is unsecured, unlike a mortgage, which is secured by property, or a car that is secured by the vehicle.  So it's likely the credit card company will be at the back of the line when it comes to paying debts from the estate.

That doesn't mean the credit card company won't try to recoup the debt from family members, so don't fall for it if you know you're not liable.  Taking some pre-emptive action, such as notifying credit card companies that the cardholder has died, will help prevent them from contacting you.

Before any debts are paid out of an estate, including credit card debt, consult your attorney.  Even if credit card balances are owed, it is often possible to negotiate settlement of the balances for less than the full amount owed.  Vaughn-Martel Law represents and assists clients who have been named as the executor, administrator, or representative in managing the estate of a loved one.


Friday, July 13, 2012

Vaughn-Martel Law Welcomes 2012 Summer Law Clerk Luke V. Bradley

We are pleased to announce the addition of Luke V. Bradley, who joins Vaughn-Martel as a 2012 summer law clerk.  Luke has completed his first year of law school at New England Law | Boston, where he made the Dean’s List.  Luke participates in the New England Law | Boston’s Student Ambassador Program assisting prospective students determine the right school for them.  Luke also volunteers for the New England Law | Boston Mentor Program, helping new students adjust to the demands of law school.

Before joining Vaughn-Martel Law, Luke interned with the Norwalk Public Defenders Office, aiding legal counsel for criminal defendants who could not afford private counsel.  Luke also clerked for the District of Columbia Office of Human Rights, supporting the Senior Mediator in addressing employment and housing discrimination in Washington, DC.

Luke is a native of Reading, Massachusetts, and graduated from Sacred Heart University with a B.S. in Criminal Justice.  During his free time, Luke enjoys music, literature, and spending time at the Boston Rock Gym.

All of us at Vaughn-Martel Law wish departing law clerk and recent law school graduate, Scott Clark, the best of luck on his bar exam and what will certainly be a bright legal career.


Tuesday, May 22, 2012

Should Smoking Be A Factor In Determining Child Custody?

 

Smoking often makes headlines for its negative impact on health, but there is a growing trend whereby probate and family court judges are considering a parent’s smoking habit when making child custody arrangements.

When any married or non-married couple with children separates, the probate and family court has jurisdiction to determine which parent will have primary physical custody and to set up a visitation schedule for the non-custodial parent.

Courts use a “best interests of the child” standard when determining appropriate custody arrangements.  Through the legal process - the presentation and weighing of evidence - judges are charged with evaluating the “fitness” of each parent.  In about 18 states, courts have ruled that a parent’s cigarette smoking habit should be considered when determining child custody arrangements.

Typically, things such as alcohol and drug abuse, or a previous history of neglect or violence, are considered when determining custody. It is becoming more and more commonplace for judges to also inquire into a parent’s cigarette smoking habits in order to comprehensively determine what type of custody placement would be best for the child. Judges may be even more likely to consider smoking a factor when the child has allergies or respiratory issues, such as asthma.

Judges across the country are quickly beginning to favor nonsmoking parents. In addition to considering smoking as a factor in determining custody, practitioners should be ready to argue for custody orders that contain specific provisions relative to a smoking parent's conduct, for example:

  • Requiring a custodial parent who smokes to only smoke outdoors;
  • Requiring a smoking parent who has visitation to abstain from smoking for at least 2 days prior to the upcoming visit and to abstain during the visit;
  • Prohibiting a smoking parent from smoking while riding in a vehicle with the child; or
  • Putting smoking restrictions on people who have frequent contact with the child, such as grandparents, close family friends, and/or a parent’s significant other.

If you currently co-parent your child and are concerned about the other parent’s smoking having a negative effect on your child’s health and wellbeing, consider filing a complaint for modification in the probate and family court to adjust the custody and visitation arrangement on account of the other parent’s smoking habit.

Source: Action on Smoking and Health


Monday, April 16, 2012

The Family Trust: Protecting Your Children's Inheritence

A simple family trust is a great tool for making sure the assets your children could possibly inherit are distributed to your children according to your wishes. By using a trust, you decide who will hold and manage the assets your children inherit.  You can put restraints on when and how distributions are made.


Read more . . .


Thursday, March 22, 2012

Tax Alert: Same-Sex Couples Should Demand Federal Adoption Credit

As individuals and families throughout the country begin to prepare and file tax returns for 2011, tax experts seem to agree that same-sex couples with children may be ignoring a significant tax benefit -- the federal adoption credit.


Read more . . .


Friday, February 24, 2012

'Til Death Do Us Part: State Residency Requirements and the Gay Divorce Dilemma

Background.  Since Massachusetts legally recognized the right of same-sex couples to marry in 2004, tens of thousands of couples from around Massachusetts and around the country have tied the knot here in the Commonwealth.  As we know, the status of marriage provides countless benefits to gay and straight couples alike in areas ranging from inheritance and property rights, governmental benefits and privileges, to child custody and parental rights, just to name a few.  But one of the most important (and often overlooked) benefits of same-sex marriage is actually same-sex divorce.  Divorce provides both parties in a relationship the benefits of an orderly division of property, assets and liabilities, and promotes the fair and equitable treatment of both spouses in the event of a breakup.

While many same-sex couples have remained here in Massachusetts, some married gay couples have either returned to their home in another state, or moved out-of-state to pursue employment or other opportunities.  If you were married here in Massachusetts and moved your family to another state, you may have left one very important thing behind: your marriage!

Our office is contacted increasingly often by out-of-state couples who were married in Massachusetts and who now want to obtain a same-sex divorce.  In many cases, both spouses are in complete agreement and ready to cooperate in order to obtain a divorce.  Their question to me:  Can we file for divorce in Massachusetts? The answer:  Probably not.

Massachusetts Case Law Concerning the "Residency Requirement".  This dilemma recently played itself out in the case of Francesca Cerutti-O'Brien v. Donna-Marie Cerutti-O'Brien.  Francesca and Donna-Marie were married in Truro, Massachusetts,  in November, 2006.  At the time of their marriage, Francesca was a shop-owner and resident of Massachusetts, and was making routine trips to be with her partner, Donna-Marie, in Florida.  Less than one month after the marriage, the couple bought a home together in Florida, with plans to open up a shop in Florida and spend summers in Massachusetts together.  Despite marital counseling, the marriage quickly soured and, according to court papers, suffered an irretrievable breakdown in Florida on June 19, 2007.  Francesca filed for divorce here in Massachusetts on June 27, 2007.

On the eve of their divorce trial, Donna-Marie moved to dismiss Francesca's divorce complaint on the basis that the Massachusetts Courts could not grant a divorce to the couple because neither of them was domiciled here in Massachusetts.  The Court agreed and dismissed the divorce.  Francesca appealed.

On review, the Appeals Court affirmed the Probate and Family Court's dismissal of Francesca's complaint for divorce.  Under Massachusetts Family Law, the Probate and Family Court can only hear divorce cases in which the grounds for divorce occurred in another state if:  (1) the spouses once lived in Mass, AND one of the spouses resides in Mass at the time the complaint is filed, OR (2) at least one of the spouses has resided in Massachusetts for at least one year prior to filing.  After all, if the grounds for divorce occurred in Florida, and the parties reside in Florida, then Florida is the most appropriate venue for the divorce, right?  Not necessarily!

The Dilemma for Married Same-Sex Couples.  The dilemma for many married same-sex couples is that their state of domicile will not grant them a divorce because it will not recognize their marriage.  After all, one of the prerequisites for obtaining a divorce is proving that you are married in the first place.  In a majority of states across the country, same-sex couples will not be able to establish the existence of a valid marriage.  And as many couples have discovered, the state that granted them a marriage now lacks the power  to grant them a divorce on account of the residency requirement.

Frustrated yet?  Consider this:  every time you re-enter Massachusetts, or any of the growing number of states or nations that recognize a Massachusetts gay marriage, you may be considered married in that state for purposes of inheritance, property ownership, medical decision-making, taxes, employment, military eligibility, etc.

Until each and every state recognizes gay marriage, or will at least agrees to grant a divorce to married same-sex couples within its borders, this dilemma represents another undue and heavy burden on LGBT couples and families.  I strongly recommend that same-sex couples who are thinking of becoming married here in Massachusetts sit down with an attorney who focuses in LGBT legal issues, and discuss the ramifications of obtaining a marriage here in Massachusetts with plans to reside outside the Commonwealth, whether a prenuptial agreement might be enforceable and provide a proper framework for dissolution of your relationship in a hostile state, or whether and how you might meet the Commonwealth's residency requirement for divorce.




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