Wednesday, April 2, 2014

Alimony Statute Construed: No Credit For Time Served!

Today the Massachusetts Supreme Judicial Court just decided, in Holmes v. Holmes (see and view the oral arguments here) that temporary alimony, awarded before final judgment in a divorce action, does not have to be credited toward a calculation of the maximum term of general term alimony.   This means that if temporary alimony is awarded, as it often is, during the pendency of a divorce action, there does not have to be "credit for time served" (to use my own, admittedly imperfect analogy to criminal sentencing) in determining the ultimate award of general term alimony when the divorce is finalized.

I just read the decision, as it was released online today.  I had expected, like my colleague Jonathan Eaton, for the Court to rule differently, or for at least some of the justices to offer a dissenting opinion. I also expected better and more thoughtful analysis in the opinion, and am not at all sure I agree with the conclusions made.

The relevant alimony statutes, as amended by the 2011 alimony reform law that went into effect in 2012, do not make clear the relationship between temporary alimony and general term alimony awards.  The appellant in this case is certainly not the only one who assumed he would get credit for his ¨time served¨paying temporary alimony.   Like it or not, the Court at least answered the question pretty decisively, and now if folks don´t like it -  in the alimony reform movement, for example - they can gather forces to try to amend the statutory provisions yet again.

A big reason why I am not sure I like this decision is the arguably unfair results I am imagining in cases of short-term marriages where the maximum general term alimony would be much shorter in duration than in this case, say two or three years, for example, and so tacking on temporary alimony, during litigation of a year or two or even longer, could very substantially increase the effective length of alimony commitment relative to the length of the marriage. There are also the obvious problems that flow from the incentive this decision may give to alimony recipients to prolong divorce proceedings to increase the total alimony payout period.

For an excellent and much more detailed explanation of the decision, and what it means for family law litigants, see Justin Kelsey´s blog of today.

Meanwhile, at least for now, all you guys and gals who may have to pay alimony, you should know that until the statute is changed again, there's no guaranteed "credit for time served."

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Saturday, March 29, 2014

Two Excellent Family Law Blogs by Massachusetts Mediators

I have not blogged here in nearly a year, and during that time, I have discovered a number of blogs by very smart people in my field who have been blogging rather prolifically and brilliantly about Massachusetts divorce and family law.  I've been reading their blogs instead of trying to write my own.  I'll just mention, for now, my two new favorites.  Not necessarily new, they are both fairly new to me.

The first is by a very smart mediator/collaborative lawyer, Rackham Karlsson, whose blog on his law firm website is already among the best family law blogs to be found.

The second is by two of Massachusetts' top family law attorneys, long-established in the field, Bill Levine and former Massachusetts Family Court Judge Chouteau Levine, who at their Divorce Mediation Blog write posts I simply wish I had written myself.

Visit them and read up!

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Sunday, June 23, 2013

Massachusetts Child Support Guidelines Revised Again

The Massachusetts Trial Court has just announced the new Massachusetts Child Support Guidelines to be in effect for the next four years, beginning August 1 of this year.  Federal IV-D regulations require each state to have uniform child support guidelines that are presumptively correct, and 45 C.F.R. § 302.56 specifically requires each state to review its guidelines at least once every four years.  The new Massachusetts guidelines effective August 1, 2013, are here (prose) and a corresponding worksheet may be found here. The current (still in effect) guidelines worksheet remains at the Massachusetts Department of Revenue's website and should be replaced with the newly revised worksheet when the new guidelines go into effect on August 1.

Following is a summary of the key revisions, as provided in the trial court's press release:

Summary of Key Changes to the Existing Guidelines
The 2012 Child Support Guidelines Task Force recommended a number of clarifications and changes.  Some are minor, while others represent new or modified provisions.  The most significant 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).
  • 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.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Wednesday, January 2, 2013

Best US Supreme Court Decision of 2012

In my view, the best U.S. Supreme Court decision of 2012 would probably be Miller v. Alabama.  This decision scored a big one for human rights of juveniles. There will be no more mandatory life-without-parole sentences for juvenile offenders.  This was a 5-4 decision of the Supreme Court back in June of 2012.  The majority opinion was penned by former Harvard Law School dean Elena Kagan.  Of course, international human rights law was not the basis for the decision, but rather the US Constitution's ban on cruel and unusual punishment.  

I have previously blogged about the issue of locking up our children and throwing away the key - see here and here.
A divided US Supreme Court struck down mandatory life-without-parole sentences Monday for juveniles convicted of murder, ruling the widespread practice violated the Constitution’s ban on cruel and unusual punishment. 
The ruling will nullify Massachusetts law, legal specialists said, and throw into question the sentences of 61 prisoners who over the past four decades were ordered to spend the rest of their lives in jail. Nationally, about 2,500 prisoners are serving life sentences without parole for murders they committed before turning 18. 
In a 5-4 vote, the high court ruled that juvenile offenders younger than 18 have “diminished culpability and greater prospects for reform” and that judges should be able to consider the “mitigating qualities of youth” in sentencing, even when juveniles commit heinous crimes.
“Such mandatory penalties, by their nature, preclude a sentencer from taking account of an offender’s age and the wealth of characteristics and circumstances attendant to it,” Justice Elena Kagan wrote in the majority opinion. “Under these schemes, every juvenile will receive the same sentence as every other — the 17-year-old and the 14-year-old, the shooter and the accomplice, the child from a stable household and the child from a chaotic and abusive one.”
It so far appears that Massachusetts has not moved quickly during the past half year since that SCOTUS decision to make the necessary corrections.   Let's hope our state will finally do so soon in 2013, and we'll thus complete one small but important step in furtherance of human rights rights here in our state.  

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Best Divorce Blog Posts of 2012

Scott Morgan, principal of the Morgan Law Firm (Houston and Austin, Texas) and fellow family law blogger, has put me on his list of the Best Divorce Blog Posts of 2012.  Check out that link for some good reading. I made it to the list on account of my blogging about gay marriage issues.  Thanks for the props, Scott!

Monday, November 12, 2012

Beyond Washington, Maryland and Maine: New Battleground States for Marriage Equality

Well, it indeed became official late last week that Washington state's referendum on marriage equality was in fact a win for marriage equality. Washington will thus be included with Maine and Maryland as the first three states to approve gay marriage by a popular vote, rather than strictly through legislative or judicial action.  They all did so in this November's elections. These three new states will now join the six other states (Massachusetts, Connecticut, New Hampshire, Vermont, New York and Iowa) and the District of Columbia as jurisdictions where gay and lesbian couples may marry.  New battleground states to watch, according to Queerty: New Jersey, Rhode Island, Illinois, Oregon, and Delaware.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Wednesday, November 7, 2012

Voters in Maryland, Maine and Washington To Approve Gay Marriage

Well, it seems to have happened.  All three of the states - Maryland, Maine and Washington - where same-sex marriage ballot initiatives were voted on yesterday, appear to be creating the right of same-sex marriage.  They join six other states (Massachusetts, Connecticut, New Hampshire, Vermont, Iowa, and New York) for a new total of nine states, plus the District of Columbia, where gay and lesbian couples may now marry.

(The vote has not yet been officially announced in Washington state, but is expected to come soon.)

These new states will be the first to create marriage equality through a popular vote, rather than through judicial or legislative action.  Three states, including our own Massachusetts, as well as Connecticut and Iowa, have judicially-created gay marriage.  The other three states, Vermont, New Hampshire, and New York, have legislatively-created gay marriage.

No doubt popular support for gay marriage equality is growing.  I continue to hope that family law scholar Joanna Grossman was right when, early this year, she optimistically foresaw, as her article title itself (following link) suggested, "the beginning of the end of the anti-same sex movement."  Indeed, another hopeful sign, from yesterday, was that Minnesota's voters rejected the ballot initiative there which called for a state constitutional amendment limiting marriage to the traditional, heterosexual marriage between a man and a woman.

I fear, however, that I may also be right in my own more pessimistic response that although progress is real, it is likely to continue to be rather slow.  (Here I am reminded of one of my favorite George Orwell quotes: "Progress is not an illusion, it happens, but it is slow and invariably disappointing.") Just as there will be a few states moving in the direction of equality, I believe there will continue to be, for many years, a large majority of states where social conservatives stubbornly refuse to recognize gay marriage.  After all, we're still only up to 9 states plus D.C..  That leaves 41 states without gay marriage, many of which already have bans on gay marriages. And of course we are still living with the federal statute (the Defense of Marriage Act).

Stay tuned.   The U.S. Supreme Court will surely weigh in soon on at least some of the issues presented by the laws for and against gay marriage.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Friday, November 2, 2012

Massachusetts Pets Now Included in Custody and Abuse Protection Orders

Over this past summer, the Massachusetts legislature passed a bill, which the Governor signed into law, that provides for the inclusion of pets in custody and abuse prevention orders.  See the recently issued Massachusetts Trial Court memo here.  I blogged about pets in restraining orders five years ago (No Longer Mere Chattel: The Rising Status of Pets in Family Law) when it was still a relatively new thing, and there were only a handful of states with such laws.  Since then, the total, not including the latest addition of Massachusetts, has risen to at least 22 other states, plus D.C. and Puerto Rico.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Thursday, October 25, 2012

Romney's Testimony in Stemberg Divorce Unsealed

Well, folks looking for a big October surprise from our state's family court may be disappointed.

This morning, according to the Boston Globe, the Norfolk County Probate and Family Court ruled that the Romney testimony in the Stemberg divorce will be unsealed.  Now it is up to the Boston Globe - which brought the litigation to report on the upcoming election - to examine the record of that testimony and tell us what, if anything, it reveals.  The confidentiality agreement between the parties to the divorce, which the former Mrs. Stemberg's attorney Gloria Allred tried to lift so she could talk about Romney's testimony, remains in place.   Allred and her client were trying to piggyback on the Globe's initial request, which included a lifting of the gag order as well as the unsealing of the testimony, but then the Globe dropped its request to remove the gag order when it was clear the testimony would be unsealed.

Gloria Allred and the former Mrs. Stemberg, who actually supplied the documents themselves as the court no longer had the two-decades-old transcripts, accused the Boston Globe of a "double cross" and will now have to petition separately for the lifting of that gag order.

There's likely no big story here, as today Mr. Stemberg rescinded his objection to the unsealing of the testimony (Romney had already stated no objection to the unsealing yesterday, but he was probably doing something of a piggyback of his own on Stemberg's objection at the time).  As this morning's proceedings, and the rescinding of the objection, occurred after Stemberg and Romney (and Staples) had been given time to review the testimony, it appears that Stemberg and his buddy Romney now see nothing in that testimony worth the political cost of continuing to object.  Furthermore, Gloria Allred herself suggested (see below), that her client needs to be allowed to speak in order to put the testimony into "context" or otherwise the testimony will not be meaningful to the public.

And to that I say, calling to mind a fine legal phrase: res ipsa loquitur...not!
The Globe originally moved to amend the confidentiality agreement to allow parties in the case to speak publicly about Romney’s testimony but dropped the request on Thursday, when Stemberg — who had opposed the Globe’s request to unseal the testimony — rescinded his objection.
Allred argued vigorously for Sullivan Stemberg’s right to address Romney’s testimony publicly, saying Sullivan Stemberg was being denied her First Amendment Right. 
“Out of context, [the testimony] has no meaning for the public,” Allred said. “She can put it in context.”The court ruled that because the Globe was no longer petitioning to modify the confidentiality order, and was satisfied by the release of Romney’s testimony, that Sullivan Stemberg would have to bring a separate motion to amend the order. 
Allred indicated that she would do so and after the hearing accused the Globe of a “double cross” because the paper stopped its push to amend the confidentiality order.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Wednesday, October 24, 2012

An October Surprise for Mitt out of Mass. Divorce Court?

Tomorrow morning there may be some interesting drama in one of Boston's family courts where I regularly practice, the Norfolk Probate and Family Court, involving sealed testimony by Mitt Romney, apparently given in support of his friend, former Staples CEO Tom Stemberg, during his divorce.   The ex-wife, represented by celebrity lawyer Gloria Allred, is reportedly here to tell the judge her client doesn't object to having the testimony unsealed.  

If this is just about Mitt's testimony that Tom Stemberg was a good father, we probably don't have much of a story.  On the other hand, if TMZ's reports are true that Mitt also falsely testified under oath that Staples was worth virtually nothing to aid his friend in misleading the court in order to reduce a payout to his exwife, then we may have a real story, an October surprise of sorts.

This may be the most excitement we have seen in the Norfolk Probate and Family Court since Bobby Brown's arrests here for contempt on child support arrears.   (I don't count the matter of the other Massachusetts Presidential candidate, John Kerry, who tried unsuccessfully, in 1995, to seal records here of his 1988 divorce to his first wife, as the facts of that case are rather boring.)

If TMZ's report about Mitt is accurate, and his testimony becomes unsealed, this could be significant news.  As we all know, from the most recent Clinton and Bush terms, a President's lying to Congress, the American people, and the United Nations about reasons for going to war is one thing.     But lying under oath before becoming President, in a deposition or trial, in a private civil case, such as a divorce or sex discrimination suit, is quite another.  It's absolutely unthinkable and disqualifies one from the very important job of lying about wars with absolute impunity and immunity.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Monday, October 22, 2012

Second Circuit Joins First in Striking DOMA

The Second Circuit Court of Appeals in New York just became the second of the intermediate-level federal appeals courts (circuit courts) to find the Defense of Marriage Act (DOMA) unconstitutional.   The first was our First Circuit Court of Appeals here in Boston back in May of this year.   The Second Circuit decision, which found the federal statute to be an unconstitutional violation of equal protection under heightened scrutiny (the "intermediate level scrutiny" for "quasi-suspect" classifications), is the most likely case on gay marriage to reach the US Supreme Court.  

Two other same-sex marriage cases likely to reach the Supreme Court are the First Circuit decision in Boston also striking down DOMA, and the Ninth Circuit decision overturning California's ban on gay marriage out there. 

For a short explanation of this Second Circuit case, with some discussion of related federal court decisions, see David Kemp's The End of an Unjust Law: The Second Circuit Strikes Down DOMA and Sets the Stage for Supreme Court Review.  Also see the New York Times article for an overview.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.