Posts Tagged ‘Divorce Law’

In 2011, the Massachusetts Legislature passed the Alimony Reform Act (ARA), which made substantial changes to the Masschusetts alimony system, including the implementation of a durational alimony scheme, thereby revising the older system once known as “alimony for life.” Under the old system, the alimony payment period was indefinite in duration, but the new law follows guidelines determined by length of marriage, from 5 years to 20+ years. This raised certain questions and challenges, especially that of alimony judgement pre-ARA (prior to March 1, 2012) as compared with post-ARA judgements. Earlier this year, three notable cases were contested under the new guidelines, questioning whether alimony payors whose divorce judgments were entered prior ARA’s effective date gain the benefit of substantive termination and modification under the new law. These three cases, Doktor v. Doktor, Chin v. Merriot, and Rodman v. Rodman, were all decided on the same day, all with the same answer: “No.”

All three cases were variations of the same concept: the alimony payor requested to end general term alimony payments based on the Massachusetts General Law chapter 208, § 49(f) interpreted as stating that alimony payments shall terminate at the payor’s attainment of full social security retirement age. There were some notable differences between the cases: in Chin v. Merriot, the husband has already reached retirement age at the time of divorce, whereas in both Rodman and Doktor, the paying spouse had attained retirement age after the divorce settlement.

Mr. Chin’s argument hinged on two points: that M.G.L. c. 208, § 49(f) superceded the “uncodified” section 4 of ARA (the provision that, other than durational limits for a marriage of 20 or fewer years, ARA is not in itself a material change of circumstances), and that the cohabitation modification (as his ex-spouse was cohabiting with another man) should retroactively apply. Mr. Rodman’s argument held that a merged alimony agreement such as his merits being treated differently from cases with surviving agreements, and Mr. Doktor argued that his former wife no longer required financial support through alimony. None of these arguments held.

The Supreme Judicial Court instead held that the ARA statute reflects a clear legislative determination that the uncodified sections 4–6 of the ARA override the more payor-friendly substantive sections of M.G.L. c. 208, § 49–55, the only exception being the general term durational limits as defined. The net result? While bad news for pre-ARA payors, the ARA protects payee spouses from abruptly losing their alimony payments when automatic social security retirement age was not obtainable in court. In other words, the SJC’s interpretation of the state legislature’s intent favors the interests of payees over those of payors.

For details of these three cases, please read Doktor v. Doktor, Chin v. Merriot, and Rodman v. Rodman.

For more details of the effects of the Alimony Reform Act, also covering Grounds for Termination of Alimony, Determining the Amount of Alimony to be Paid, and Alimony Modifications, please read Effects of the 2011 Massachusetts Alimony Reform Act, and also Massachusetts Alimony Reform Act of 2011 Law Summary.

Q/AQ: What is the most common mistake that is made in family law cases? 

A: Parties become so emotionally involved that they fail to act calmly and rationally.  These cases, by their very nature, are stressful. If a party can’t handle that stress, they are at a disadvantage and  will frequently sabotage their own case!  In practice, there are many different ways that this will manifest itself.

Some of the the most common instances of this include:

1) An overwhelming need for a “quick” resolution – even if it doesn’t make sense for the party or the family;

2) An unwillingness to comply with orders of  the Court – which almost always creates greater difficulties for the party;

3) The hiring-firing of multiple lawyers and/or the unwillingness to really listen to and implement the advice of counsel;

4) Acting rashly and impulsively and taking major actions without consulting with counsel.

An experienced family law attorney will understand that these are stressful times for his/her client and will try to keep clients calm or recommend therapeutic help when appropriate. Parties who find themselves overwhelmed by the process may need to seek professional counseling.

There is an old saying in the family law profession: “In criminal cases you have bad people on their best behavior and in divorce cases you have good people on their worst behavior.” 

Parties need to understand that emotional behavior is not the  path to the successful resolution of a family law matter.

The oft-cited statistic has it that 50% of US marriages end in divorce, rather than the death of a spouse (though the actual figure is between 40% and 50% depending upon statistical methodology applied). Does this make divorce a cause to celebrate, to rejoice in finally being free from the constraints of a failed marriage? Or rather a cause to lament, to decry the sorry state of our society? Of course, the truth is neither and both, with a wide range of grey inbetween.

The reality is extremely subjective, varying from person to person, and all parties involved, not merely the spouses. One spouse may rejoice, the other regret. And have you ever known children of a divorce throw a party, thrilled that their parents are finally separated (absent parental abuse, anyway)? No, of course divorce is a serious matter, a venture not lightly entered into, a life-changing course rivaled by few other events in one’s life. It is sage advice to consider all options before choosing divorce as the only recourse in a failed marriage. One’s marriage may not be failed after all, simply faltering, and steps may be taken to correct the course, through counseling and mediation among other measures.

But if divorce seems your only recourse, then it is imperative that you seek the legal advice of an experienced divorce attorney who can guide you through the maze of issues that arise with divorce proceedings, many if not most of which you may well not be aware of before commencing your divorce process. Consider how much of your life, public and private, financial and material, will be analyzed and debated in a court proceeding. In fact, this is largely why 90% of all divorces are settled out of court; spouses reach agreement without courtroom drama through the aid of legal advice and mediation and so can come to terms without court proceedings.

This past June, in a landmark decision, the US Supreme Court found the Defense of Marriage Act (DOMA) unconstitutional, declaring that that same-sex couples who are legally married in a state recognizing same sex marriage deserve equal rights to the benefits under federal law that go to all other married couples. This decision is widely seen as striking down DOMA in favor of marriage equality, but of course it’s more complex than that and the ramifications are now unfolding.

The latest major change as a result of the DOMA decision is that the IRS now will recognize same sex married partners as married regardless of the state in which they reside, thereby requiring that such couples file their federal income tax returns as either married filing jointly or married filing separately; they can no longer file separately as unmarried individuals (same as for heterosexual married couples). The IRS is also allowing such couples to file amended income tax returns for prior years in which they may have paid too much as a result of filing separately, but they do not have to file amended returns if doing so would result in higher taxes than they paid. This is indeed welcomed news for all such parties.

One wrinkle however is that such couples, if residing in a state which does not recognize same sex marriage after having been legally married in a state which does, may be required to file state income tax returns separately, a complication augmented by the fact that state income tax filing generally follows from federal. Still, overall this is a progressive move.

Another complication is that, while this key component of DOMA was overturned, another major component remains: Section 2 of DOMA declares that those states which do not recognized marriage equality (same sex marriage) do not have to recognize any same sex marriage from states which such marriage are legal. This not only informs the tax code as referenced above, but also can complicate divorce proceedings for same sex couple residing in a state which does not recognize same sex marriage. How so? If a couple is not recognized as legally married in a given state, then that state can deny that couple the right to divorce since, according to state law, they are not married to begin with. Furthermore, they cannot return to the state where they were married for the purpose of seeking a divorce since all states require residency for such proceedings. This would mean that such a couple would have to uproot themselves from their current state of residence and re-establish residency in the state in which they were married prior to seeking divorce.

Massachusetts was the first state to legalize same sex marriage, back in 2003, with the first same sex couples marrying in 2004. Now nine states and the District of Columbia have legalized same sex marriage and people talk of a “sea change” in marriage in the US (and, indeed, elsewhere, as similar changes have been underway in other countries, particularly in Europe). This raised the question of the constitutionality of DOMA, the Defense of Marriage Act, passed by Congress and signed into law by President Clinton (who has recently spoken out in opposition to the law) in 1997. In all, there are some 1,100 federal marriage benefits denied to all same sex married couples, regardless of whether they were legally married according to their state law. Beyond the questions of marriage benefits, however, there are also questions regarding the dissolution through divorce of any same sex marriage.

Obtaining a divorce for same sex couples is an area replete with difficulties, including issues of jurisdiction for divorce (your state may determine divorce based on residency, which will prevent the Commonwealth of Masschusetts from having jurisdiction to grant divorce even if the marriage was originally performed in Massachusetts), and a great many limitations on “standard” divorce practices due to the fact that same sex marriages are not recognized at the federal level. These limitations may include alimony, pension divisions, and limitations on bankruptcy provisions. This is an area where a very experienced divorce lawyer is often required.

As the song has it, “Money changes everything.” Without a doubt, one of the most frequent causes of divorce is financial discord between the partners. One or both spouses’ debt may become unmanageable, whether through indulgence or carelessness, or through unfortunate circumstances beyond one’s control. As the mountain of debt soars higher, personal and marital stress may also increase, leading to partners deciding to part ways.

As you no doubt have seen, whether in personal experience or in the movies, much of divorce proceedings may focus on property division, but debt division can be equally contentious, especially where two marital partners are equally responsible for the debt, even if that debt was incurred by only one of the spouses. So what happens in divorce? Generally, debt is divided in the same manner as assets; that is, the court aims for equitable division of debt.

Thus, debt that is acquired during the marriage (and possibly leading up to the marriage) will be equally divided….maybe. Many factors come into play, and you should most definitely discuss your unique circumstances with a qualified divorce attorney. For example, a short-term marriage may not hew to this rule of thumb. Other exceptions include cases where one spouse garners debt through spending money on an extramarital affair, where the other spouse should not be obligated to repay that debt, or where one spouse has a gambling habit and has gambled his or her way deep into debt (however, if the other spouse had knowledge of the gambling habit, and benefited therefrom when the first spouse was winning, a judge may find that the debt should be divided equally between the partners).

These are but a few examples. As a very complex and vital area in a potential divorce proceeding, the only good advice is to seek the counsel of a qualified divorce lawyer to examine your circumstances in depth.

When Governor Deval Patrick signed Chapter 124 of the Acts of 2011 on September 25, 2011, the Commonwealth of Massachusetts effectively abolished most lifetime spousal support, thereby joining several other states where alimony payment laws have changed as payors argue they are struggling in the current economy.

The measure generally ends alimony either when the payor reaches retirement age or when the recipient has cohabitated with a romantic partner for 90 days. Further, the law also establishes a formula for alimony, based on the length of the marriage. For example, a 15-year marriage would generally yield alimony which would last no more than 10.5 years of marriage.

However, the law still allows judges to award indefinite alimony for long-term marriages (those lasting 20 or more years), and in the case of short marriages, judges can order “reimbursement alimony” in such situations as when one spouse put the other through school during the marriage.

The major impact of the Massachusetts law is to end the previously common practice of judges awarding alimony as a permanent entitlement; such practice is becoming increasingly rare practice across the U.S. Additionally, and for the first time, the law sets guidelines for determining the amount of alimony payments. Signed in September 2011, the changes took effect in March 2012, which allows people who are currently paying lifetime alimony to file for modifications starting in 2013.

This area of law is still evolving and there is very little applicable case law at this time. An experienced divorce lawyer can advise you as to how the new statute might affect your individual situation.

DISCLAIMER
The information contained in this blog is for educational purposes only and is not legal advice. The use of this Blog does not create an attorney/client relationship between you and the Law Offices of Barry R. Lewis. If you are considering divorce or if you are involved in any legal matter, you should hire an attorney.

Massachusetts Divorce and Family Law
Attorney Barry R. Lewis — Divorce Law Specialist
Locations Throughout Eastern & Central Massachusetts :: 508-879-3262