Spousal Support

Thursday, August 22, 2013

New Rules Will Simplify Certain Uncontested Family Court Matters

This summer, the Massachusetts Probate and Family Court announced changes to Rule 412 of the Supplemental Rules of the Probate and Family Court.  These changes went into effect on August 1, 2013.  The changes to Rule 412 allow parties to jointly request modification of a judgment or order of the Probate and Family Court where:

  1. the parties are in agreement;
  2. the agreement is in writing; and
  3. all other requirements of the Rules are met.

Following this procedure - and assuming that the parties' file is otherwise in order - will allow the parties to be granted a modification without having to appear in court.

Previously, Rule 412 addressed only child support judgment modifications, and if the parties were in agreement regarding a modification of child support, they were required to file a joint petition for modification of child support.  The parties would not be required to appear in court.

Rule 412 has now been expanded to allow parties to modify temporary orders in addition to final judgments, and to modify judgments or orders other than child support using this procedure as well.  These changes will allow the courts to handle more cases administratively and help to alleviate backed up clerk’s offices in the probate and family courts throughout the state.

If you are interested in modifying a judgment or order of the Probate and Family Court with the assent of the other party, contact a local family law attorney to learn about your options and the newly simplified procedure.

A complete copy of Massachusetts Supplemental Probate and Family Court Rule 412: Uncontested Actions to Modify a Judgment or Order can be read in the link provided.

About the Firm.  Vaughn-Martel Law represents parents and children throughout Massachusetts in divorce, child custody, modifications, co-parenting, and all aspects of family creation and family law.  If you have a question about your specific parenting plan, marital settlement agreement, or court order, or wish to speak to an attorney about effectively parenting with a former spouse or partner, we invite you to contact us.

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.

Tuesday, October 4, 2011

Massachusetts Passes Historic Alimony Reform Law

The new Massachusetts Alimony Reform Law was signed by Governor Patrick on September 26, 2011.  This new law sets limits on the duration of alimony awards, where previously there had been none, and also eliminates lifetime alimony in short and medium length marriages.  The previous system allowed judges to award lifelong alimony no matter the length of the parties’ marriage and payments often continued after the recipient spouse began cohabitating with a new partner or the payor spouse retired.

Reforming the alimony system in Massachusetts has been a much discussed and anticipated event in the legal community as Massachusetts has characteristically been seen as a state with conflicting alimony laws which left judges, lawyers and spouses confused and frustrated.  In Massachusetts, alimony possibilities have been almost limitless, with lifetime alimony being a real possibility.

The new legislation will clarify alimony regulations for both lawyers and judges and will enable judges to properly and fairly tailor alimony awards to a couple’s individual circumstances.  The law establishes a formula for alimony based on the length of the marriage.  Alimony will now be calculated in much the same fashion as child support.

Some provisions of the new alimony law include:

1)      If the duration of marriage is 5 years or less, general term alimony shall be no greater than one-half the number of months of the marriage;

2)      The court shall have discretion to order alimony for an indefinite length of time for marriages longer than 20 years;

3)      General term alimony shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payor shows that the recipient has maintained a common household with another person for a continuous period of at least 3 months.

The new alimony law is effective for alimony judgments entered on or after March 1, 2012.  Those paying alimony who wish to file for a modification have designated waiting periods to limit the influx of modification filings in the probate and family courts.

If you have questions concerning your divorce, or how the new law may impact your existing spousal support order, gather your current paperwork and schedule a meeting with the attorneys at Vaughn-Martel Law.

Charles River Law Partners, LLC represents clients in Suffolk County, Middlesex County, Essex County, Norfolk County, Plymouth County, Bristol County, Worcester County, Hampden County, and Franklin County.
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