Increasing Trend:Shared Physical Custody

As traditional gender roles become more outdated and both parents head into the workforce, shared (or joint) physical custody has become more common. Well, what does this mean? In order to delve further into this topic, you must first understand the differences between legal and physical custody (See my previous blog defining legal and physical custody http://wp.me/p3fUOK-14).

In the Commonwealth of Massachusetts, mothers and fathers[i] have equal rights in custody cases. It is a common misconception that mothers are more likely to obtain custody of the children during divorce or custody proceedings. This inaccurate assumption stems from the antiquated Tender Years Doctrine, which is no longer utilized by the courts. The Tender Years Doctrine established a presumption that mothers should have custody of younger children based upon the notion that young children must to stay close to their mothers for love and support. This was also during a time men and women more commonly conformed to traditional gender roles.

Currently under Massachusetts Law, there is no gender preference given to a parent based solely upon gender. Modern families are finding that the “new normal” consists of two separate households, two sets of expenses, and two fully employed parents.  Thus, more parents are finding that shared physical custody can be beneficial to not only father (who would like to enjoy more parenting time), but also to mother (who would like for father to share in the responsibility of parenting duties). However, in order for a shared physical custody parenting plan to succeed, parents must be able to communicate with each other in a healthy, productive manner. The parties must also take into consideration what is in the best interest of the children. As well as, whether it is possible to establish a stable schedule with few parenting exchanges. Therefore, in order for this parenting arrangment to succeed a custody arrangement must be thoughtfully drafted and may not be appropriate in most cases.


[i] When a child is born to parents who are not married, fathers must first establish paternity prior to asserting their rights as a parent. This differs from a child born to married parents, as the father’s parental rights are presumed to be established.

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2013 Revised Child Support Guidelines

After much anticipation, discussion, and debate, the revised Massachusetts Child Support Guidelines have been released and became effective as of August 1, 2013. The 2012 Child Support Guidelines Task Force recommended a number of clarifications and changes to the existing Child Support Guidelines.  While some changes are seemingly minor, others represent new or modified provisions.  The most significant changes to note include:

  • Income from means tested benefits such as SSI, TAFDC, and SNAP are excluded for both parties from the calculation of their support obligations;
  • Availability of employment at the attributed income level must be considered in attribution of income cases;
  • The text makes clear that all, some, or none of income from secondary jobs or overtime may be considered by the court, regardless of whether this is new income or was historically earned prior to dissolution of the relationship;
  • Reference is made to the 2011 Alimony Reform Act; the text does not, however, provide a specific formula or approach for calculating alimony and child support in cases where both may be appropriate;
  • Clarification is given as to how child support should be allocated between the parents where their combined income exceeds $250,000;
  • A new formula is provided for calculating support where parenting time and expenditures are less than equal (50/50) but more than the assumed standard split of two thirds/one third;
  • Guidance and clarification is given in the area of child support over the age of eighteen where appropriate.  While the Guidelines apply, the court may consider a child’s living arrangements and post- secondary education. Contribution to post-secondary education may be ordered after consideration of several factors set forth in the Guidelines and such contribution must be considered in setting the weekly support order, if any;
  • The standard for modification is clarified to reflect the recent Supreme Judicial Court decision in Morales v. Morales, 464 Mass. 507 (2013); and
  • Circumstances justifying a deviation are expanded to include extraordinary health insurance expenses, child care costs that are disproportionate to income or when a parent is providing less than one-third parenting time.

The change in guidelines comes with a revised worksheet to calculate child support and a form for Judges to use when they decide to enter an order that is not in strict compliance with the Guidelines. While information is readily available online for parents and guardians, an experienced divorce lawyer can help individuals understand their rights and how they may be affected by the new guidelines.

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Common Law Marriage: Not in Massachusetts

What is Common Law Marriage?

Surprisingly, common law marriage is more than just living with a significant other.  In order for this type of marriage to be considered valid, you must first find out if your state even recognizes common law marriages and then see if you and your significant other meet the requirements.

In the United States, only Alabama, Colorado, Iowa, Kansas, Rhode Island, South Carolina, Montana, Utah, Texas, and Washington, D.C. actually recognize common law marriages. The State of New Hampshire recognizes common law marriage for purposes of probate matters only and Utah recognizes common law marriages only if they have been validated by a court or administrative order.

The Commonwealth of Massachusetts does not recognize common law marriages or even any duty to support an unmarried co-habitant. However, Massachusetts courts have applied equitable principles to resolve property disputes between former co-habiting individuals.

What are the requirements for a Common Law Marriage?

It varies state to state. If you currently reside in a state that recognizes common law marriages, you must refer to your state specific laws for details and requirements.  Generally, the following must be established:

  1. You must live together.
  2. You must hold yourselves out the world as a married couple. (This can be done by using the same last name or referring to one another as husband or wife).
  3. You must reside together for a significant period of time established by your jurisdiction.
  4. You must intend to be married.

What about Social Security Benefits?

It is important to note that the Social Security Administration will only recognize your common-law marriage if the state where you reside recognizes your common-law marriage. In order to ensure that you would be eligible for survivor benefits, you need to go to a SSA office and fill out forms, provide statements from two blood relatives, and provide supporting evidence of your common-law relationship.

Please remember that the information contained above is for informational purposes only. Before acting upon or making any decisions based upon the information contained within this page, you should first consult an experienced attorney

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Annulments

Where a divorce terminates a marriage, an annulment declares that no marriage ever existed. Under the Massachusetts General Law c. 207, §14 and depending on whether the marriage is considered void or voidable, either party can file a Complaint for Annulment. However, annulments are not often granted by the courts and should only be sought when the facts clearly show that the marriage is, in fact, invalid.  

 Void vs. Voidable Marriages

  • Void Marriages:       

A void marriage is a marriage that was invalid from its very beginning. Such marriages are unlawful and require no formality to terminate. However, it is recommended that a void marriage be formally terminated by the court. It is always better to be safe, than sorry!  A marriage can be declared void for the following three reasons:

  1. Consanguinity. The parties are too closely related by blood. (e.g. brother/sister);
  2. Affinity. The parties are too closely related through marriage. (e.g. mother-in-law/son); or  
  3. Bigamy. One party was married to someone else at the time he or she married the second party. However, if the party now seeking an annulment knew at the time of the marriage about the prior marriage, they cannot seek an annulment.

 

Important Note:         The reason given for claiming that the marriage was void must be the actual reason you left your spouse.

 

  • Voidable Marriages:  

A voidable marriage is a legal marriage that one (or both) spouse(s) may petition the court to cancel. One party must file a “Complaint for Annulment” in the appropriate Probate and Family Court in order to invalidate the marriage. Voidable marriages occur when:

  1. One spouse lacked the mental capacity to marry. This includes cases where one spouse was not of legal age to be married and no parental or judicial consent for the marriage was sought. In Massachusetts, the legal age for marriage is 18 years old;
  2. One spouse was impotent. This means the spouse lacks the ability to sexually perform and not merely the inability to conceive children;
  3. There is fraud in the marriage contract. This includes if one party is marrying for love and the other is marrying for personal benefit such as avoiding deportation; or
  4. One party entered into the marriage under duress. This means that one party only entered the marriage because of pressure or threat.

 If you are considering filing for a divorce or an annulment, contact an experienced family law attorney who may assist you in determining the best route for you.

 

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and e-mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

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Grandparent Visitation Rights in Massachusetts

In accordance with Massachusetts General Laws ch. 119 § 39D, the Commonwealth recognizes the importance of the grandparent/grandchild relationship, while at the same time respecting a custodial parent’s constitutional right to parent his or her child. “The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children.” Troxel v. Granville, 530 U.S. 57, 68 (2000).

Under M.G.L. ch. 119, § 39D and if the Court finds that such visitation rights are in the best interest of the child(ren), grandparents may be granted visitation rights with their unmarried, minor grandchildren under the following limited circumstances:

  1. If the parents of an unmarried, minor child are divorced; or
  2. If the parents of an unmarried, minor child are married but living apart, under a temporary order or judgment of separate support; or
  3. If either or both parents of the unmarried, minor child are deceased; or
  4. If said unmarried, minor child was born out of wedlock whose paternity has been adjudicated by a court of competent jurisdiction or whose father has signed an acknowledgement of paternity, and the parents do not reside together.

In order for the Court to determine that the grandparent visitation rights are in the best interest of the child, the grandparents must prove that either (1) there was and is an important and significant relationship in existence between the child and the grandparents and that the Court’s refusal to grant visitation will be harmful to the child’s health, safety, or welfare; or (2) there was no pre-existing relationship, but that visitation rights for the grandparents are required to protect the child from significant harm. Blixt v. Blixt, 437 Mass. 649 (Mass. 2002).

How do I start this process?

 

A grandparent may begin this process by filing a “Complaint for Grandparents Visitation” with the appropriate Probate and Family Court. The Complaint must be accompanied by an affidavit that describes his/her/their involvement with the grandchild(ren), the circumstances surrounding either the reduction or termination of contact, a description of the current contact, if any, and a statement describing the significant harm to the child(ren)’s health, safety, or welfare likely to be suffered by the child(ren) if visitation is not ordered. For further information regarding this complicated process, please contact an experienced Family Law attorney.

 

M. Katie Kerr, Esq. may be reached by telephone at (978) 388-1787.

 

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and e-mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

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Merger vs. Survival

Prior to signing your divorce agreement, you must understand this legal distinction.

The terms set forth in every divorce agreement (or separation agreement) either “merge” or “survive” a Judgment of Divorce. This legal distinction will determine whether certain portions of your agreement (e.g. alimony, life insurance, and health insurance) may be modified or changed in the future. The language used will ultimately determine whether the agreement in front of you is fair and reasonable.

Unfortunately, individuals who represent themselves in divorce proceedings often do not completely understand the effect this language may have years down the road. I have witnessed on several occasions, a judge explaining this distinction to pro se (unrepresented) parties minutes before they are enter into a binding agreement.

This is one reason it is imperative to have an attorney review your agreement and thoroughly explain the ramifications. If you spend now, it will save you later!!

What does the term “Merger” mean?

When a portion of the separation agreement merges then that portion of the agreement is incorporated into the Judgment of Divorce and remains modifiable by the court,  if one party can show that there has been a significant and material change in circumstances, and that change warrants a change in the agreement.

Short answer:  This portion may be modified in the future!

What does the term “Survival” mean?

If a term of the Separation Agreement survives then this means that said term is not incorporated with the Judgment of Divorce, and continues to exist as a separate contract between the parties. Any portion of an Agreement that survives the Judgment of Divorce is not modifiable.

Short answer: This portion may not be modified in the future!

It is important to note that a “survived” agreement does not prevent modification of most child-related issues. Even if the parties’ separation agreement was intended to survive the judgment of divorce, a modification seeking a change in most child-related provisions may be modified by the court. In the alternative and absent fraud, property division cannot be modified by the court.

For further information regarding merger and survival and its impact on your divorce agreements, please do not hesitate to contact my office at (978) 388-1787.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and e-mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

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SJC of Massachusetts Ruled New Standard for Modifications of Child Support

On March 12, 2013, the Supreme Judicial Court of Massachusetts issued a binding opinion setting forth a new standard of review in cases requiring modification of child support. Prior to March 12th, the standard of review was whether there had been a “material and substantial change in circumstances” to warrant said modification.  Now, in order to modify a child support obligation, the filing party must prove that the current child support order is “inconsistent” with the application of the Child Support Guidelines. This new standard, referred to as the inconsistency standard, will be applied to child support modification cases moving forward.

However, this standard is in reality not so “new.” The SJC found that the child support statute (M.G.L c. 208, sec. 28) as passed by the legislature, in fact, applies the “inconsistency” standard, whereas the 2009 Child Support Guidelines uses the “material and substantial change in circumstances” standard. In cases where there are such conflicting rules, the statute passed by the legislature must prevail. Only time will tell how this lower standard of review will play out in the court.

For further information see Morales v. Morales, SJC-11104.

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