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State Senator Patrick O’Connor (R-Weymouth) Endorses Alimony Re-Reform Bill

Massachusetts divorce lawyer Jason V. Owens reports on the recent endorsement of H 4427 by State Senator Patrick M. O’Connor (R-Weymouth), who is up for re-election in November.

Massachusetts alimony lawyer. Massachusetts alimony attorney.

Attorney Jason V. Owens

Massachusetts alimony reform advocates have received a boost from Senator Patrick M. O’Connor (R-Weymouth), who publicly endorsed House Bill 4227, “an act reforming alimony in Massachusetts”, late last month. O’Connor, who represents Plymouth and Norfolk counties in the Massachusetts Senate, recently wrote a letter declaring his support for the bill to the Chairwoman of the Senate Ways and Means Committee, Karen E. Spilka (D-Ashland), along with Vice Chair, Sal N. DiDomenico (D-Everett). In his letter, O’Connor urged the Committee to report favorably on H 4227, also known as the Alimony Re-Reform Act (ARRA) in the upcoming legislative session. The bill passed the Massachusetts House in a unanimous, 156-0 vote in June, before becoming stalled in the state senate prior to the legislature’s summer recess. Alimony reform advocates indicate they will continue to pursue passage of the bill in January, when the senate reconvenes.

The full text of Senator O’Connor’s endorsement letter is here:

Download the PDF file .

Alimony Reformers React to O’Connor Endorsement

Stephen Hitner, President of Massachusetts Alimony Reform, praised O’Connor’s endorsement, indicating that alimony reform advocates would be active in the days leading up to this November’s election. “We will be urging our supporters to volunteer, make donations, and encourage their friends and family to vote for candidates like Senator O’Connor, who publicly support a  Payers Right to Retire.” Hitner indicated he has been working hard to put together a coalition of Senators to support the bill when the senate reconvenes in January. H 4427 is a Legislative fix to the SJC misinterpretation of the Alimony Reform Act of 2011. Before the winter legislative session begins, however, Hitner acknowledged that reform supporters plan on being very active in the upcoming election.

This May, O’Connor was elected to the senate in a special election, after longtime Republican senator Bob Hedlund stepped down to become the Mayor of Weymouth. O’Connor, a Republican, will face off in November with Democrat Paul Gannon, who was selected by the party to run against O’Connor earlier this month. O’Connor’s senate seat includes the Plymouth County and Norfolk County towns of Cohasset, Duxbury, Hingham, Hull, Marshfield, Scituate and Weymouth.

Massachusetts State Senator O'Connor endorses alimony reform bill

Senator Patrick M. O’Connor (above) is seeking re-election in November.

According to Hitner, reform advocates will be “Play Makers” in elections this fall. “The Alimony Reform Act of 2011 is a bipartisan issue, approved unanimously in 2011 by both the House and Senate.” he said. “It’s an important issue that people feel passionate about, that has nothing to do with Trump or Hillary. We will be supporting candidates like Senator O’Connor, who express public support for the bill. In a close race, our support can weigh very heavily.”

About the Alimony Re-Reform Bill

The bill seeks to modify the Massachusetts Alimony Reform Act (ARA) of 2011. The provides for the termination of alimony when (a.) the paying spouse reaches federal retirement age or (b.) if the recipient spouse cohabitates with a new romantic partner following a divorce. However, in 2015, the Massachusetts Supreme Judicial Court held that flaws in the original bill’s language meant that the retirement and cohabitation provisions would only apply to divorces that occurred in 2012 or later. House Bill 4227 would revise the ARA to make the retirement and cohabitation provisions applicable to all divorce cases, including those entered before 2012.

What’s Next for Alimony Reform Bill?

Hitner anticipates that H 4227 will be a priority for the Legislature when the it reconvenes in January. “I expect the bill to be resubmitted with a strong coalition of sponsors in January, followed by hearings in February or March, and vote in the spring,” Hitner says.

Read more of our coverage on  H 4227 and the Alimony Re-Reform Act here.

About the Author: Jason V. Owens is a Massachusetts divorce lawyer and Massachusetts family law attorney for Stevenson, Lynch & Owens, located in Hingham, Massachusetts.

Schedule a free consultation with Jason V. Owens today at (781) 741-5000 or send him an email:

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Disclaimer: 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. You are invited to contact our office. Contacting the office does not create an attorney-client relationship. Please do not send any confidential information to the office until such time as an attorney-client relationship has been established. This blog is considered an advertisement for The Law Office of Stevenson, Lynch & Owens, P.C. The Massachusetts Rules of Professional Conduct broadly govern all advertisements and communications made by attorneys and law firms in the Commonwealth. Generally, legal websites and any other content published on the internet by lawyers are considered a type of communication and an advertisement, according to the Comments to Rule 7.2.

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Complaints for Contempt for Violations of Child Support, Alimony and Financial Orders in Massachusetts

Massachusetts divorce lawyer Jason V. Owens reviews Complaints for Contempt for the violation of financial orders, including child support, alimony and asset division.

Massachusetts divorce lawyer. Massachusetts custody lawyer.

Attorney Jason V. Owens

Today is Part 3 of our blog series on Complaints for Contempt in Massachusetts Probate and Family Courts. Today’s blog (Part 3) focuses on Complaints for Contempt arising out of alleged violations of monetary orders, including child support, alimony and payments arising out of the division of marital assets in Massachusetts Probate & Family Courts. Please check out Part 1 of the series for our comprehensive overview of Complaints for Contempt in Massachusetts and Part 2 for our review of Complaints for Contempt for violations of visitation and custody orders.

Part 1. Complaint for Contempt in Massachusetts: the Legal Standard

As covered in our previous blogs, the legal standard for a finding of contempt for failing to obey financial orders in Massachusetts requires a plaintiff to present “clear and convincing evidence of disobedience of a clear and unequivocal command.” Accordingly, there must be a clear and unambiguous financial order, that provides the defendant with notice of his or her financial obligations. Second, the plaintiff must provide clear and convincing evidence that the defendant disobeyed the order by failing to make the required monetary payments.

Part 2. Massachusetts Laws Specific to the Determination, Payment and Enforcement of Financial Orders in the Probate and Family Court

There are a variety of relevant statutes that give rise to financial orders in Massachusetts family law cases. These include:

  • The Child Support Guidelines – Sets the amount of child support in most Massachusetts cases.
  • 208, s. 28 and Ch. 209C s. 9 – The Massachusetts child support statutes for married and unmarried parents, setting the duration and terms of child support within the state.
  • The Alimony Reform Act of 2011 – Sets the amount, duration and terms of alimony in Massachusetts.
  • 208, s. 34 – The Massachusetts asset division statute, which provides for the division of marital assets.
  • 215, s. 34 – the Massachusetts contempt statute, which sets out the authority of the probate and family court to enforce financial orders.

The vast majority of financial orders entered by Probate and Family Law cases arise out of the statutes above. These statutes form the basis of most financial orders set forth in separation agreements, stipulations for judgment, temporary orders and final judgments in Massachusetts.

Part 3. Contempt for Failure to Pay: Law Specific to Complaints for Contempt for Financial Violations

The primary Massachusetts statute dealing with the violation of financial orders in the probate court is Ch. 215, s. 34A, the Massachusetts contempt statute, which provides for legal fees and interest in cases in which a party is found in contempt for violating a financial order, which provides:

In entering a judgment of contempt for failure to comply with an order or judgment for monetary payment, there shall be a presumption that the plaintiff is entitled to receive from the defendant, in addition to the judgment on monetary arrears, all of [his or her] reasonable attorney’s fees and expenses relating to the attempted resolution, initiation and prosecution of the complaint for contempt. The contempt judgment so entered shall include reasonable attorney’s fees and expenses unless the probate judge enters specific findings that such attorney’s fee and expenses shall not be paid by the defendant. …. Any monetary contempt judgment shall carry with it interest, from the date of filing the complaint, at the rate determined under the provisions of section six C of chapter two hundred and thirty-one of the General Laws. (Editor’s Note: the actual interest rate provided under Ch. 231, s. 6(c) is 12% per annum.)

The defining feature of Ch. 215, s. 34A is the presumption that a defendant who’s found to have violated a financial order will be required to pay the legal fees and costs of the plaintiff. As noted in prior blogs, many probate and family court judges feel an aversion to ordering legal fees, even when mandated by a presumptive statute. A common way for judges to avoid compliance with the legal fee component of Ch. 215, s. 34A is order so-called “contempt review hearings”, in which they hold that if a defendant complies with the financial order by a certain date, there is no need for the parties to return to court. Such review dates effectively allow the court to avoid finding a party in contempt, thereby eliminating the need for an order for fees (or the issuance of findings of fact explaining why fees were not required).

In addition to the authority under Ch. 215, s. 34A, probate and family court judges presiding over divorce proceedings have the authority to order fees and costs under Ch. 208, s. 38, which provides:

In any proceeding under this chapter, whether original or subsidiary, the court may, in its discretion, award costs and expenses, or either, to either party, whether or not the marital relation has terminated. In any case wherein costs and expenses, or either, may be awarded hereunder to a party, they may be awarded to his or her counsel, or may be apportioned between them.

Part 4. Interest on Contempt Judgments

An additional statute of interest is Ch. 231, 6c, which sets the interest rate on child support and alimony arrears as follows:

In all actions based on contractual obligations, upon a verdict, finding or order for judgment for pecuniary damages, interest shall be added by the clerk of the court to the amount of damages, at the contract rate, if established, or at the rate of twelve per cent per annum from the date of the breach or demand. If the date of the breach or demand is not established, interest shall be added by the clerk of the court, at such contractual rate, or at the rate of twelve per cent per annum from the date of the commencement of the action, provided, however, that in all actions based on contractual obligations, upon a verdict, finding or order for judgment against the commonwealth for pecuniary damages, interest shall be added by the clerk of the court to the amount of damages, at the contract rate, if established, or at a rate calculated pursuant to the provisions of section six I from the date of the breach or demand. If the date of the breach or demand is not established, such interest shall be added by the clerk of the court from the date of the commencement of the action.

Like legal fees, many judges express discomfort with ordering interest on arrears in support cases. There are a variety of reasons judges feel uncomfortable with ordering interest, with the first being that the arithmetic for calculating interest can actually be quite challenging. The math challenges are particularly present when additional arrears are accruing on a weekly basis, creating a “moving target” for judges.

In the child support context, the best way for litigants to ensure they receive interest on arrears is by using the Massachusetts Department of Revenue (DOR) to collect child support and track arrears. DOR’s authority for enforcing child support orders on behalf of Massachusetts parents is provided under 830 CMR 18.18A.1, which is part of a rather dense regulatory scheme that is partially mandated by federal law.

Part 5. Leading Massachusetts Cases Affecting Contempt of Financial Orders

For cases affecting contempt actions as a whole in Massachusetts, we recommend a look at our comprehensive blog featuring Massachusetts case law on contempt. Cases specific to financial orders frequently focus on the defense of a party’s alleged “inability to pay” the order in question. For example, in Cooper v. Keto (2013), the Court noted “[t]he defendant must have the ability to comply with the order” for contempt to lie. Of note, however, is that under G.L. c. 215, § 34, the burden shifts to a defendant to prove his or her inability to pay:

At the hearing of a complaint for civil contempt, the defendant shall have the burden of proving his or her inability to comply with the preexisting order or judgment of which the complaint alleges violation.

Similarly, in O’Connell v. Greenwood (2003), the Appeals Court remarked that “[a] putative contemnor may no doubt avoid a finding of contempt if she meets her burden of proving her inability to comply with the relevant court order.” Despite the burden falling on a defendant to prove his or her inability to comply with a financial order, decisional law suggest that a plaintiff may be required to provide at least some evidence regarding a defendant’s ability to pay.  For example, in a recent unpublished opinion, Lohnes v. Lohnes (2016), the Appeals Court vacated a finding of contempt against a defendant whose attorney had missed the contempt hearing, noting:

[I]n the absence of the husband and his counsel, the judge relied on unsworn representations by the wife’s lawyer to find that the husband was able to pay the amounts that were alleged to be in default. The husband was provided no opportunity to address his burden on the issue of ability to comply.

Clearly, the Lohnes case involved an unusual situation in which the defendant and his attorney were totally absent from the hearing in question. Nevertheless, the case suggests that a defendant is entitled to a meaningful hearing regarding his inability to pay. Parties and practitioners should also note that it can be challenging to rebut a defendant’s claim that he or she is unable to pay if his or her financial order reflects no available assets. Additional complexities arise when a defendant has the theoretical ability to pay an arrears from tax-affected assets, such as 401(k) account, but lacks employment income to pay the order.

Part 6: Issues Relating to the Calculation, Collection and Enforcement of Child Support and Alimony Arrears

As noted above, many child support recipients use the Department of Revenue to enforce and collect child support on their behalf. DOR is an outstanding resource for obtaining direct payment of child support from defendants’ employers, as well as tracking arrears and interest, but the Department is generally regarded as inferior to private attorneys when it comes to obtaining findings of contempt against non-paying defendants. Like public defenders, DOR attorneys frequently appear in Probate and Family Courts representing more than 30 plaintiffs in a single day. This makes it difficult for DOR attorneys to fully understand the facts of any one client’s case.

Massachusetts divorce lawyer and Massachusetts family law lawyer. Norfolk county and Plymouth county.

THe most common Complaint for Contempt in Massachusetts arises out of the non-payment of child support.

Parties should also be aware that there is no statute of limitations on the collection child support arrears. Child support obligations never go away in Massachusetts, and arrears can even be sought against a defendant’s estate following his or her death. Further, parties should know that under G. L. c. 119A, § 13(a), Massachusetts judges are unable to reduce child support arrears that pre-date the filing of a Complaint for Modification.  Indeed, in Quinn v. Quinn (2000), the Appeals Court noted:

[G. L. c. 119A, § 13(a)] no longer permits a judge to moot or reduce arrearages for child support except for any period during which there is pending a complaint for modification.

Moreover, the Quinn court also made clear that an out of court agreement by a plaintiff to accept less child support is unenforceable if the parties failed to enter the agreement as a new order of the court. Thus, child support payors should never assume that a recipient’s waiver of child support will hold up in court if the recipient changes his or her mind, and later decides to collect. The Quinn court addressed the issue in plain terms: “we therefore conclude that the plaintiff’s agreement to accept less money than provided by the court order in this case did not constitute a defense to the plaintiff’s complaint for contempt.”

Unlike child support, case law does suggest that a defendant may reduce or eliminate an alimony arrearage that predates the filing of a Complaint for Modification. See Binder v. Binder, 7 Mass. App. Ct. 751, 760 (1979) (“A Probate Court has the power to reduce the alimony provisions of its divorce judgment retroactively, as well as prospectively…”). In Lombardi v. Lombardi (2007), the Appeals Court suggested a defendant might be able to cite a defense of laches if a plaintiff waits too long to collect alimony arrears.

Finally, it should be noted that the Massachusetts contempt statute, Ch. 215, s. 34, has several things to say about the relationship between financial arrears and the modification of support orders. Specifically, the statute provides:

An order or judgment in a contempt proceeding for payment of an arrearage shall not be contingent on a reduction in the amount of current support payable under an existing order or judgment for support of a spouse, former spouse or child absent a finding that a substantial change of circumstances has occurred. Neither the existence of an arrearage nor the amount of any arrearage shall constitute a substantial change of circumstances or grounds for modification of an outstanding order or judgment for support.

In short, the statute says that a defendant cannot cite the burden of his or her unpaid support as grounds for a reduction in current or future support payments. The defendant must provide some other evidentiary basis to reduce current support.

Part 7. Penalties for failing to Pay Support

The Massachusetts contempt statute, Ch. 215, s. 34 says the following about parties found in contempt for failing to pay financial orders:

When a judge of the probate court finds that a defendant is in civil contempt for failure to obey any order or judgment of the court relative to support of a spouse or child, the judge shall issue an order for the defendant to do one or more of the following:

(1) serve a sentence in jail; provided, however, that such sentence shall be stayed if the defendant purges himself of the contempt by taking such action as may be specified in the order, including one or more of the actions specified in clauses (2) to (6), inclusive;

(2) pay the full amount due under the order or judgment for support;

(3) make regular payments of current support and an additional specified amount towards arrears, pursuant to a payment schedule ordered by the court that requires payment of not less than the amount required under section 12 of chapter 119A and that meets all other requirements of said section 12 of said chapter 119A;

(4) actively seek paid employment and report at regular intervals, as specified in the order, to a probation officer on actions taken to seek employment;

(5) participate in a program of community service, as specified in the order, for up to 40 hours per week and report at regular intervals to a probation officer to present proof of participation in such program; or

(6) participate in an appropriate job readiness or job training program, as specified in the order, and report at regular intervals to a probation officer to present proof of participation in such program.

Among these penalties, the most underused is likely subparagraph (5), which provides that courts may order a non-working party to participate in community service if he or she is not paying support. In my experience, a 20-hour per week community service order is the most effective means of forcing an unemployed person to return to work. Invariably, a defendant who is sentenced to community service concludes that even a minimum wage job that is reduced by a support order is a better option than working for no pay at all.

Massachusetts contempt

A party can be sentenced to jail after being found in contempt in Massachusetts.

The statute makes clear that non-payors of support may be sentenced to jail, so long as the order includes a “purge” amount that permits the defendant’s release if the arrearage is paid. As a practical matter, jail sentences are generally restricted to child support payors who habitually fail to pay support or find gainful employment. Many judges prefer to rely on suspended sentences that provide for incarceration if a defendant fails to pay within a short period. The problem with such orders, of course, is that police may be unable to locate a non-paying defendant seven days later.

Part 8: Collecting and Enforcing Financial Orders

The Department of Revenue has a variety of tools for enforcing child support orders, including garnishing paychecks, attaching bank accounts, suspending driver’s licenses, placing liens on homes, and intercepting tax refunds. Many of these tools work best when a defendant is employed and/or owns substantial property. DOR also has strong interstate authority, and can work with child support enforcement agencies in other states to collect arrears. Against habitually unemployed non-payors, DOR’s only tool may be tracking the arrears and calculating interest.

Notably, DOR’s collection efforts are largely limited to child support cases. To collect alimony or asset division payments, most parties must turn to a private attorney, who has different tools at his or her disposal for collecting arrears. Like DOR, attorneys can attach bank accounts. With sufficient information, however, a private attorney can often attach funds in more comprehensive, instantaneous manner than DOR. Private attorneys also tend to have superior abilities to obtain payment through seizing or liquidating other assets, including retirement accounts or real estate, when compared to DOR.

In the end, both DOR and private attorneys have strengths and weaknesses. DOR services are free, while private attorneys cost money. DOR can leverage the power of the government demand direct payment from employers, suspend driver’s licenses and intercept federal tax refunds. However, DOR is less effective when it comes to targeting specific assets, and its attorneys lack the time to pay special attention to each recipient’s case.

Part 9: Curing the Contempt

Unlike parenting orders, financial arrears can typically be “cured” at any time before a hearing a defendant. Thus, even if the defendant has failed to comply with a financial order by paying a certain amount by a certain deadline, Massachusetts law suggests that he or she cannot be found in contempt, so long as the monies are paid prior to the contempt hearing.

However, defendants who choose to wait until the last minute to cure a contempt should know that a court can enter an award for legal fees, even if there is no finding of contempt.  Massachusetts has a broad statutory scheme that gives Massachusetts Probate and Family Court judges broad authority to order legal fees in family law cases on a wide variety of grounds.

Part 10. Modification of Orders in Contempt Cases

In Kennedy v. Kennedy (1983), the Appeals Court noted that a “Probate Court has power to modify a support order in the context of either a complaint for contempt or a complaint for modification.” However, a strict modification is only permissible if the Court finds that there is a substantial change in circumstances. Courts have greater flexibility to enter so called “remedial orders”, which are “intended to achieve compliance with the court’s orders for the benefit of the complainant.” See Furtado v. Furtado (1980). Such orders are designed to right whatever wrong the plaintiff has suffered as a result of the contempt, and to coerce the defendant into compliance with the order.

Finally, Massachusetts law permits judges to clarify ambiguous orders in contempt cases.  For example, in Cooper v. Keto (2013), the Appeals Court held that although the husband’s interpretation of the parties Separation Agreement was ultimately incorrect, the husband’s misinterpretation was not so unreasonable as to qualify as “disobedience”. Thus, the husband was not found in contempt, but the court’s order of clarification provided that husband must pay the amounts sought by the wife. Similarly, in Colorio v. Marx (2008), the Appeals Court held that a judge reviewing an ambiguous order in a contempt case may clarify the order based on contract principles – which focus on the intent of the parties at the time agreement was made – to resolve the dispute over the meaning of the agreement’s language.

It should be noted, however, that all of these powers are greatly restrained in interstate child support contempt cases, if another state retains sole and exclusive jurisdiction over the modification of child support.

Part 11: Common Defenses to Financial Contempt

By far, the most common defense relied on by defendants in contempt cases involving financial orders is an alleged inability to pay. The complicating factor in such a defense often comes down to assets. For example, if a support payor loses his or her job, he or she may legitimately argue that he lacks the ability to pay support from a current stream of income. However, in Schuler v. Schuler (1981), the SJC held that capital assets may be considered in determining a defendant’s ability to pay. A recent unpublished opinion of the Appeals Court, PTC v. BKG (2013), articulates the dilemma:

The father does not contest that there was `a clear and unequivocal command and an equally clear and undoubted disobedience,’ …; he concedes that he failed to pay any of the amounts ordered. He maintains instead that `[he] must [have been] found to have the ability to pay at the time the contempt judgment enters,’ and that such proof was lacking.

The father had the burden of proving that he was incapable of complying with the order. … `[T]he judge was warranted in finding that the [father] had disobeyed [the] order. . . . Nothing in the record demonstrates that, as a matter of law, the [father] satisfied his burden of proving his inability to comply with the judge’s orders.’

The father testified at trial to a steady income from his job in the Department of Veterans Affairs. He further testified that he had previously taken on extra work to pay his child support obligations, but had not done so on this occasion. This alone was sufficient basis for a finding of contempt, as the judge was `authorized to consider the defendant’s earning capacity in setting the amounts to be paid.’ Id. at 602. In addition, his financial statement showed that he owned his own home and that he had equity in his home. Capital assets may be considered in determining the ability to pay. … In light of these facts, the judge’s determination that the father was able, but unwilling, to pay was not an abuse of discretion. We also see no abuse of discretion in the judge’s award of attorney’s fees incurred through July 29, 2010, in connection with the contempt proceedings.  (Citations omitted.)

As G.L. c. 215, § 34  makes clear that a defendant has the burden of proving his or her inability to pay:

At the hearing of a complaint for civil contempt, the defendant shall have the burden of proving his or her inability to comply with the preexisting order or judgment of which the complaint alleges violation.

For defendants, the take away is that it is very risky to present an inability of pay defense unless he or she is truly destitute.  The better practice is to file a Complaint for Modification and seek a temporary order suspending or reducing child support. While a judge may have the authority to enter such a temporary order through a contempt action, the judge lacks the authority to reduce child support arrearages under Ch. 119A, s. 13.

About the Author: Jason V. Owens is a Massachusetts divorce lawyer and Massachusetts family law attorney for Stevenson, Lynch & Owens, located in Hingham, Massachusetts.

Schedule a free consultation with Jason V. Owens today at (781) 741-5000 or send him an email:

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Questions? Please visit our Frequently Asked Questions: Divorce in Massachusetts page and the SL&O Divorce Series for more information about divorce in Massachusetts.

Disclaimer: 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. You are invited to contact our office. Contacting the office does not create an attorney-client relationship. Please do not send any confidential information to the office until such time as an attorney-client relationship has been established. This blog is considered an advertisement for The Law Office of Stevenson, Lynch & Owens, P.C. The Massachusetts Rules of Professional Conduct broadly govern all advertisements and communications made by attorneys and law firms in the Commonwealth. Generally, legal websites and any other content published on the internet by lawyers are considered a type of communication and an advertisement, according to the Comments to Rule 7.2.

 

 

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Back to School Doesn’t Have to Mean Back to Court

Massachusetts divorce lawyer Josey Lyne Payne discusses the challenges faced by parents whose children are returning to school in the fall.

Massachusetts divorce lawyer

Attorney Josey Lyne Payne

It’s September, and the kids are going back to school. Divorced and divorcing parents also find themselves going back to court. This is not paranormal, it’s actually fairly predictable and understandable, although perhaps not necessary.

The first day of school and the weeks leading up to that special day are often overwhelming, taxing already busy schedules and giving rise to new expenses. There are enrollment issues, parent-teacher meetings, sporting teams and extra-curricular activity sign-ups, the need for choosing and purchasing school supplies, choosing and purchasing new outfits, bus schedules, coordinating personal schedules, and so on. These added pressures often create feelings of regret, resentment and even anger.

Add to these feelings the simple fact that children enrolled in school do not require as much supervision, rides to camps, vacations or other attention. The fall represents a time of transition, so it’s not surprising that many parents also feel it is time to address any overdue probate and family court issues.

The Challenges that Come with Children Going Back to School

Psychologically, the start of a new school year represents a sense of advancement for children. With these advances come new challenges, however. Divorced and divorcing parents often feel they need to turn to court to make new arrangements to determine which parent is responsible for pick-ups and drop-offs at the school or at the bus stop. Many parents feel “my kids are re-organizing their lives, so I should too.”

The resumption of school triggers other questions. Which parent should pay for the school supplies and extra-curricular activities? What if those activities occur during one of the parents’ scheduled parenting time? Who should pay for supplies and clothing? The questions can go on and on and so can the resentment, since one parent often feels he or she is carrying most of the load with new school responsibilities.

Massachusetts divorce lawyer and Massachusetts family law lawyer. Norfolk county and Plymouth county.

Back to school stress often involves financial issues.

Some parents return to court in the fall because they are finally free of the child care responsibilities of the summer. Other parents do so because fall is a time to “get serious” and address the problems they put off all summer. Still others feel so overwhelmed by new school-related responsibilities that they feel their only means for relief from the new pressures is to go back to court with new demands or requests.

Parents Have the Ability and Authority to Make Their Own Agreements

Going back to court should not be a decision that a parent should take lightly. Even more importantly, going back to court is not they only option, and may not even be the best option. Unfortunately, many parents don’t realize that they have both the ability and the authority to make agreements together with only minimal involvement from the court and sometimes no involvement at all! Sometimes, parents just need a plan to empower them in making their own decisions for their family, and making agreements that benefit everyone, especially the children.

Identify the Issues and Deal with Them

Addressing Unresolved Issues

Many parents exit summer feeling like they spent the last three months on cruise control, jumping from beach trips, to cookouts to family reunions. The change of pace from summer to fall is sometimes so drastic that parents feel the need to solve all of their problems at once – including problems with their child’s other parent. Snapping out of the summer haze doesn’t need to cause panic, however. Parents should start the fall by making a list of all of the parenting issues they need to resolve. After sending the list, they may be surprised to learn that their child’s other parent is gripped by a similar feeling of stress and panic over similar issues. For this reason, a diplomatic tone is important.

Apportioning Expenses

Identify the issues that have created new problems for the family; these are often the expenses associated with getting the kids their back-to-school supplies and scheduling issues. It can be difficult to step back and look at the situation objectively and then create a plan, especially when stress is running high. Now is the time to work together to ensure that the children aren’t burdened with these adult issues. It’s no secret that back-to-school supplies and new clothes can cost a small fortune. It’s also no secret that these things are necessary and children do not have the means to purchase or acquire these items on their own – which means that responsibility must fall to the parents.

Many families find that their dollars are already stretched thin after a summer of fun, sun, spending and shortened work weeks. Purchasing school clothes and the supplies that come part-in-parcel with the kids returning to school can trigger that panicky sense that the rest of the world has snapped back to reality, while you are just waking up.

Many of my clients have found that success comes when they agree to make specific purchases for the children. This often works best when one parent takes the initiative, explaining via email that he or she has already purchased shoes, pants or tops, but the kids still need sweaters and outer wear. Similarly, school supplies are often best addressed with a “divide and conquer” approach. Rather than asking for reimbursement or “splitting” costs, parents often do best by voluntarily purchasing a portion of the supplies, then asking the other parent to shop for and purchase the items that still need to be purchased.

This way, parents equitably share the expenses, and perhaps even more importantly, each parent gets to be meaningfully involved in the process of shopping and preparing their child for school.

Addressing Schedule Conflicts

Back to school often includes an even busier schedule for kids, even if child-rearing duties lighten for parents once school resumes. If the family isn’t on the same page one of two things can occur: the children miss events and activities, or a parent gets left out of event actives, breeding hurt and resentment. There are easy and practical ways to avoid this.

One very effective way to keep everyone in the family in the loop is to utilize a shared calendar. There are several free programs and apps that can help families communicate and schedule the events that will make up their memories over the school year. Several of my clients use COZI.com or create a shared Google calendar for the family to use. Each member of the family, including both parents, have a central location to both share and gather information. A shared calendar can also empower children who feel caught between their parents’ disagreements. By printing out the calendar and sharing with the child regularly, he or she can develop his or her own voice when it comes to the activity and event schedule.

Informing Important People

During and after divorce, parents have a continuing duty to make sure that the transition process is as easy on the children as possible. Part of that responsibility includes informing others of changes in the family dynamic since school ended the previous spring. It is a good practice to inform your children’s teachers, counsellors, principals, and coaches early in the school year about the current family situation. Parents should also create a safe guardian list for school officials to refer to during pick-ups, which has the added benefit of keeping your children safe.

Another way to stay informed is for both parents to attend parent-teacher conferences, either together, if feasible, or separately. Involvement by both parents is helpful to teachers and sends a strong message to children that they are important and loved. That’s great parenting!

Being Present is a Present to your Children

By default, children’s extra-curricular activities occur during one parent’s scheduled parenting time. It is important to understand that a child’s scheduled activity should not be viewed as an interruption to parenting time, but rather, an essential part of a child’s social and emotional development. Activities also provide unique opportunities for parents to share their children’s interests.

In addition, it is important for both parents to be present at events and activities, regardless of the court-ordered parenting plan schedule. It is often the clients who encourage the other parent to attend these activities (even when it is not during their parenting time) who experience the greatest co-parenting success. Divorced or divorcing parents do not need to be best friends. However, civility goes a very long way.

Ask for Help

Sometimes families really do need attorneys and the court to intervene to address parenting problems that are just too difficult or overwhelming for the parties to deal with on their own. That doesn’t mean the parents have failed or that they are bad parents. Being a good parent often involves making the difficult decisions and asking for help when your family and health are compromised. Turning to experts to help craft a plan that can address issues and simplify or clarify problems is a very real option for parents who need help creating an environment where their children can thrive, not just survive.

About the Author: Josey Lyne Payne is a Massachusetts divorce lawyer and Massachusetts family law attorney for Stevenson, Lynch & Owens, located in Hingham, Massachusetts.

Schedule a free consultation with Josey today at (781) 741-5000 or send her an email:

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DisclaimerThe 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. You are invited to contact the office. Contacting the office does not create an attorney-client relationship. Please do not send any confidential information to the office until such time as an attorney-client relationship has been established.  This blog is considered an advertisement for Stevenson, Lynch & Owens, P.C.. The Massachusetts Rules of Professional Conduct broadly govern all advertisements and communications made by attorneys and law firms in the state. Generally, legal websites and any other content published on the internet by lawyers are considered a type of communication and an advertisement, according to the Comments to Rule 7.2.

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By |September 19th, 2016|Categories: Family Law|Tags: , , , |

What is Proper Dress and/or Attire for a Court Hearing?

Massachusetts divorce lawyer Josey Lyne Payne provides tips, advice and resources to assist parties in selecting proper dress and attire for their court hearing.

Massachusetts divorce lawyer

Attorney Josey Lyne Payne

When the court sends out a Notice letting a party know the date and requirements of a scheduled hearing that they must appear at, often, right across the middle of the document in bold letters and ***surrounded by asterisks*** is the phrase: “proper dress required”. What does constitutes “proper dress” for a court hearing? Like so many things in life, it is sometimes easiest to identify “proper dress” by noting what it is not.

That said, what constitutes “proper dress” depends on several factors. It could depend on the representing attorney’s perspective and opinion, the type of hearing a party has been summoned to, and a person’s job and work schedule. While there really is no absolute right answer, there is definitely a wrong way to dress at court, which we will explore below.

The Massachusetts Official Guidelines and Other Jurisdictions

Believe it or not, here in Massachusetts, the state actually actually publishes gender-specific guidelines for proper court room attire, at least with respect to criminal hearings. According to the state, parties should “think of the courtroom as a formal environment. Dress as you would when going for an important job interview or to church.”  Specifically, parties should adhere to the following dress code:

Men: wear shoes with socks; long pants (on pants with belt loops, wear a belt); collared shirt (tucked in) preferably with a tie, with or without a jacket.

Women: wear shoes; a dress, skirt (preferably no more than two inches above the knee) or long pants; a blouse, sweater or casual dress shirt.

Further, the Commonwealth explicitly suggests that you not wear:

  • shorts
  • hats
  • halter or tube top
  • see-through top
  • flip flops
  • clothing that exposes your midriff or underwear
  • ripped or torn jeans
  • baggy pants that fall below your hips
  • clothing with an emblem or wording that promotes illegal or inappropriate activity
  • clothing that depicts or promotes violence, sex acts, illegal drug use or profanity

Massachusetts is not alone. Various other states, cities and jurisdictions have published similar guidelines. For example, the city of Houma, Louisiana goes the extra mile in its guidelines, including requirements for women such as “dresses or skirts must be no more than 2” above the knee” where “a modestly dressed person does not expose any part of the breast, midriff, backside, or undergarments”; prohibiting men from wearing “cut off shorts … muscle shirts or tank tops”; and requiring that “all nose, lip, or facial jewelry must be removed before entering the court”. The Law Library of Congress and Wall Street Journal have even chimed in on proper courtroom dress. A comprehensive list of state court dress guidelines can be found here.

(Considerable ink has also been spilled about proper attorney attire, particularly for female attorneys, but that is a subject for another blog.)

The Fashion Industry View

The fashion industry also has opinions about proper courtroom attire. For example, Real Men’s Style suggests:

The general rule is to dress conservatively. Depending on why you are summoned to court, a solid charcoal or navy suit with a white shirt and coordinating tie will pass any judge’s standards.

Find yourself in a rural area attending traffic court – then consider a sport jacket with slacks and slip-ons with no tie. A men’s navy blazer and coordinating trousers is also acceptable, and shows the lawyers and judges present that you are mature enough to take their court seriously.

If you are being represented by an attorney, then listen to what he or she has to suggest and work with them to ensure you dress appropriately, especially if attending court outside the United States. Dressing down to seem innocent or dressing up to disassociate yourself from negativity could contribute to what the judge or jury think about you.

If you have a large number of tattoos consider strongly covering them with long sleeve clothing, even if they are military related.  The judge will see your military service on your presented record – you can’t assume the jury will be able to see what they are from 20 feet away.

More fashion tips for “dressing for success in the courtroom” can be found here.

The Lawyer’s View

When asked, I tell my clients to dress as if they are going to a job interview for an administrative office position. Most hearings are formal and a party should respect that by dressing properly. That said, there may be times when a party is on their way to or from work and do not have time to change their clothing. In that case, it’s a good idea for a party to let the attorney know that their attire is due to their work schedule – often times the attorney will explain this to the judge and mitigate any potential risk of the judge thinking that a party is not demonstrating respect for the court.

In her amusing blog on the subject, Attorney Dianna Gould-Saltman offers up the following sage advice to clients looking for dress tips:

Above All, Dress Respectfully – You want to let the judge know the minute he or she sees you that you take this situation seriously. Don’t just dress as if you’re going to church or synagogue. Dress as if you’re going to your MOTHER’s church or synagogue. Wear clothes that are modest, clean and which fit you well. Clothes don’t have to be new but they should demonstrate that you understand that this is a serious occasion.

Other attorneys have offered interesting takes across the internet.

Improper Dress

Make no mistake, there is improper dress when it comes to appearing in court. In fact, it may be easier to understand what is considered proper dress by explaining what is not proper, or is improper. I counsel my clients that court is not a club! Do not dress like you are on your way to a party or a bar! For my female clients I counsel to avoid wearing stiletto heels, excessive make-up, short skirts and plunging necklines. For my male clients, if possible try to avoid wearing jeans, excessive jewelry and athletic gear:

  • Court is not a sporting event! That said, a Tom Brady jersey probably isn’t the best choice for a pretrial conference (even during the playoffs!). Yoga and sweat pants, it’s safe to say, are always a no-no for court. If a party is wearing a tee shirt, try to ensure that the shirt doesn’t make statements or advertise anything vulgar or offensive.
  • Court is not a fashion show! There is no need to parade before the court and the audience an ensemble ready for the runway. Personal style is authentic and that is important, but if authentic can easily be construed as eccentric, it’s probably at this time that a party should practice a less is more attitude.
  • Court is not a slumber party! Under no circumstances (except in emergencies – i.e. domestic violence emergency hearings) should a party wear pajamas to court. Imagine the message that is likely being conveyed to that court and to the judge – it’s definitely not a message that a party wants to send.

Common Sense Considerations

The common sense advice I give to my clients is to dress comfortably but conservatively. Make sure your appearance is clean and considerate. Avoid flashy and/or provocative attire and accessories. The goal should be to represent clearly that you respect the court and respect yourself. In fact, the more “conventional” you appear, the better.

About the Author: Josey Lyne Payne is a Massachusetts divorce lawyer and Massachusetts family law attorney for Stevenson, Lynch & Owens, located in Hingham, Massachusetts.

Schedule a free consultation with Josey today at (781) 741-5000 or send her an email:

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DisclaimerThe 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. You are invited to contact the office. Contacting the office does not create an attorney-client relationship. Please do not send any confidential information to the office until such time as an attorney-client relationship has been established.  This blog is considered an advertisement for Stevenson, Lynch & Owens, P.C.. The Massachusetts Rules of Professional Conduct broadly govern all advertisements and communications made by attorneys and law firms in the state. Generally, legal websites and any other content published on the internet by lawyers are considered a type of communication and an advertisement, according to the Comments to Rule 7.2.

 

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Can a Personal Injury Settlement be Divided as a Marital Asset in a Massachusetts Divorce?

Massachusetts personal injury attorney and divorce lawyer James M. Lynch explains how personal injury settlement proceeds are divided in Massachusetts divorce cases.

Massachusetts divorce lawyer

Attorney James M. Lynch

Under Massachusetts law, the proceeds of a personal injury suit are “undeniably” part of a party’s “divisible estate” for divorce purposes. In Dalessio v. Dalessio (1991), the Supreme Judicial Court remarked that “the husband’s proceeds from the personal injury suit undeniably would have been part of his divisible estate had he not exchanged them for an annuity. The character of the proceeds as property within his § 34 assignable estate does not change simply because he used them to purchase an annuity.”

Notably, the Dalessio court held personal injury award damages for lost future income are plainly divisible under Massachusetts law:

The husband’s final argument in this regard is that, if nothing else, the judge erred in including within the husband’s divisible estate so much of the lawsuit proceeds as compensated the husband for his future loss of earning capacity and his future medical expenses, because those proceeds represent compensation for events theoretically occurring after the divorce. The husband asks us to follow certain other States that have considered this question and hold that only those proceeds compensating the husband for losses occurring before the divorce can be assigned to the wife.

We decline to do so. … [I]n the analogous area of pension benefits, it is clear that — in appropriate circumstances, and under the version of § 34 applicable to this case … — a judge does not err in including within a spouse’s assignable estate a percentage of the spouse’s future pension benefits, even if that percentage includes benefits that are not specifically attributable to the period of the marriage.

In short, Dalessio makes clear that personal injury settlement proceeds fall squarely within the definition of “marital assets” under Massachusetts law.

Hanify Decision: Even Potential Settlements are Divisible Assets

Dalessio expanded on the Court’s previous holding in Hanify v. Hanify, 403 Mass. 184, 187-188 (1988), in which the SJC unambiguously declared that even a potential personal injury settlement is a divisible asset under Ch. 208, s 34:

The husband in this case has an enforceable, ripened, and pending claim for money damages. The damages include claims for income and assets lost during the marriage. The loss affected both spouses. Recovery of this loss should be considered an asset under § 34, because such recovery replaces monies that would have benefited both spouses had the alleged legal wrong not occurred.

The Hanify Court similarly held that basing the divisibility of a lawsuit on the timing and structure of a settlement would simply empower claimants to manipulate settlement outcomes to avoid the division of assets:

The fact that a lawsuit is still pending at the time of divorce does not alter this result. A contrary decision would merely “place the claimant in the position of manipulating the claim so as to `liquidate’ it after divorce and thus have the power to determine whether it is included in marital property.” … In our view, “if the claim for a compensation award accrues during the marriage, the award is marital property regardless of when received.” We therefore affirm the judgment awarding the wife an interest in the pending lawsuit.

Today, Hanify remains black letter law in Massachusetts. Indeed, the case was recently cited with approval in Adams v. Adams, 459 Mass. 361, 376 (2011), in which the SJC noting that an “interest in [a] pending lawsuit is [a] ‘chose in action’  and ‘[c]hoses in action, rights and other interests, the benefits of which may be receivable now and in the future’ attributable to marital estate”) quoting Hanify v. Hanify, 403 Mass. 184, 187-188 (1988).  [Editor’s note: For those keeping track at home, a ‘chose in action’ is a ‘proprietary right in personam, such as a debt owned by another person, a share in a joint stock company, or a claim for damages in tort.’” See Black’s Law Dictionary 275 (9th ed. 2009).]  Hanify was cited again by the Massachusetts Appeals Court as good law in Canisius v. Morgenstern (2015).

Other states, such as New York, have taken a different view on whether personal injury settlements are divisible property in a divorce. In Massachusetts, however, the law could not be clearer: a personal injury settlement can and will be divided as a marital asset in a divorce.

About the Author: James M. Lynch is a Massachusetts personal injury attorney and divorce lawyer for Stevenson, Lynch & Owens, located in Hingham, Massachusetts.

Schedule a free consultation with James M. Lynch today at (781) 741-5000 or send him an email:

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Disclaimer: 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. You are invited to contact our office. Contacting the office does not create an attorney-client relationship. Please do not send any confidential information to the office until such time as an attorney-client relationship has been established. This blog is considered an advertisement for The Law Office of Stevenson, Lynch & Owens, P.C. The Massachusetts Rules of Professional Conduct broadly govern all advertisements and communications made by attorneys and law firms in the Commonwealth. Generally, legal websites and any other content published on the internet by lawyers are considered a type of communication and an advertisement, according to the Comments to Rule 7.2.

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How Massachusetts Courts Treat Future Inheritances and Expectancy Interests in Divorce Cases

Massachusetts divorce lawyer Nicole K. Levy reviews the treatment of future inheritance and unvested expectancy interests in Massachusetts divorce cases.  

Massachusetts child support lawyer

Attorney Nicole K. Levy

Dividing up property and assets in the midst of a divorce is difficult, particularly, when the sentimental value of contested property outweighs its monetary value. Parties may fight over a retirement asset worth thousands, a marital home worth millions, or a child’s kindergarten drawings from six years ago. Massachusetts Probate and Family Court judges are not insensitive to the sentimental value of marital property, but generally speaking, the equitable division of assets is based on the objective, fair market value of the property owned by the parties. The judge’s job is to determine what property is worth, then assign shares to each party based on the factors set forth in the Massachusetts property division statute, Chapter 208, section 34.

The division of assets is based on an objective valuation of the parties’ property; however, certain types of property pose special challenges for judges. For example, if one spouse earns restricted stock units (RSUs) as part of his or her compensation, a court may struggle to determine whether unvested RSUs awarded to the spouse during the marriage should be treated as assets, and subject to division, or as future income as a source for the future payment of alimony or child support. Similar complexities arise out of a party’s receipt of substantial gifts or inheritances during the marriage. Still more complex are divorce scenarios in which one party’s potential acquisition of a future inheritance plays a factor.

Inheritance, especially future inheritance, is a unique “asset”, that often reflects one party’s unique family circumstances, which are independent from the marriage itself. Moreover, it is problematic to refer to a future inheritance – also known as an expectancy interest – as an “asset” at all. For example, what if one party’s wealthy parent decides to write his or her child out of the will after the divorce is complete? Or what if the wealthy relative faces unexpected medical expenses, and spends all of his or her money before dying? Or what if the relative simply keeps living, decade after decade, well past the age of 100? Each examples illustrates why a future inheritance is an expectancy; that is, an asset a party expects to receive, but is not certain.

Assets Subject to “Defeasance”: how Massachusetts Courts Treat Uncertain Assets in Divorce Cases

The word “defeasance” is not one you hear often. But it represents a fairly straight-forward concept: if a person’s right to receive an asset in the future is subject to a condition, and the absence of the condition means the person will not receive the asset, then we say the asset is subject to “defeasance”. For example, let’s say your old Aunt Rose has earmarked $1 million for you in her will. If Rose died tomorrow, you would be very sorry for the loss, but you would also be $1 million richer. For today, however, Rose remains alive and well, which means that she could change her will on a whim. This is why you bring Aunt Rose cookies once a month. It is also why your “right” to receive $1 million under Aunt Rose’s will is subject to “defeasance”.

It is easy to see why future assets that are subject to “defeasance” are problematic in a divorce context. What happens if Rose changes her mind? If your potential acquisition of a future inheritance from Aunt Rose played a major part in your divorce, then Rose’s decision to write you out of her will, two years after you were divorced, could mean that your former spouse received a far greater share of the assets than you did. For this reason, Courts view mere expectancy interests with suspicion in divorce cases.

Massachusetts divorce lawyer and Marshfield family law lawyer. Stevenson, Lynch & Owens are Marshfield divorce lawyers and family law attorneys - divorce lawyers and family law lawyers Marshfield, MA 02050.

A future inheritance can have unexpected effects in a Massachusetts divorce.

The mere fact that an asset is subject to “defeasance” does not automatically mean the asset is excluded from division in a divorce. Let’s return to the example of RSUs. In general, RSUs are a type of employment compensation that require an employee to remain employed by the employer for a period of time (commonly three years) before his or her RSUs “vest”, and the employee can cash them in. If the employee leaves the employer before the RSUs vest, the employee loses the RSUs. Accordingly, unvested RSUs are subject to “defeasance” – if the employee leaves before the vesting date, the employee gets nothing.

However, we know from Attorney Lynch’s blog that unvested RSUs can be divided as asset in a divorce, despite their non-guaranteed nature. A similar example is often found in employee 401(k) plans in which the employer’s “match” does not vest until the employee has worked at the company for several years. As such, the employer match portion of the 401(k) is subject to “defeasance” – the employee does not receive the match if he or she leaves the firm before vesting.) Like RSU’s, 401(k) employer match funds can be divided in a divorce, despite being subject to “defeasance”. Yet another example is defined benefit pensions. Many pension plans require employees to work for upwards of ten years before the employee becomes eligible for the employer’s pension plan. However, a Massachusetts Probate and Family Court may be divide the unvested portion of a spouse’s pension, even though the benefit subject to defeasance if the spouse leaves the employer before reaching the vesting date.

In all of the examples, the mere fact that an asset is subject to “defeasance” – i.e. the asset could be rendered worthless if some future condition occurs or does not occur – will not prevent a probate and family court from divided the asset in a divorce. Despite the seeming inconsistency, future inheritances are treated differently in Massachusetts.

How Massachusetts Treats Future Inheritances and Expectancy Interests in Divorce Cases

Massachusetts courts have consistently held that a future, expectancy interest in a living person’s modifiable (i.e. revocable) will or estate plan cannot be divided in a divorce. In other words, even if old Aunt Rose is on death’s door, and Rose’s last will and testament provides that you will receive $1 million when Rose dies, a Massachusetts probate and family court judge will not consider your inheritance from Rose to be an asset subject to division in a divorce until and unless Rose actually dies. Why? Because your interest in Rose’s estate is a mere expectancy interest that could be changed by Rose at any time.

The reasons appellate courts have given for treating future inheritances differently from other assets that are subject to “defeasance” are numerous. For example, in the case of RSUs and 401(k) matching funds, the spouse typically has a contractual right to receive the asset so long as they keep working. An heir or legatee under an individual’s will generally does not have a contractual right to receive the inheritance. Accordingly, an employee has a degree of control over his receipt of RSUs or matching 401(k) funds; he or she must simply keep doing his job, and the benefit is relatively guaranteed. Similarly, the value of an inheritance to very wildly before the testator dies and the inheritance becomes payable. How knows: Aunt Rose might reduce your share under the will, or it may turn out she had a secret gambling problem, and she spent all of her money before she died. In contrast, RSUs and matching 401(k) funds represent assets whose values might fluctuate, but which can be ultimately measured in dollar value at any particular point in time.

The bottom line is that Massachusetts courts have found that assigning a present value for a potential future inheritance is simply too speculative for the division of assets in a divorce. Clearly, the examples of unvested RSUs, 401(k) matching funds, and unvested pension benefits demonstrate that Massachusetts courts are willing to divide assets that carry a risk of defeasance. However, these assets do carry a degree of predictability compared to a future inheritance, both in terms of an employee’s contractual right receive such benefits, and the ability to estimate or forecast the future value of such benefits.

Mere Expectancy Interest vs. Divisible Assets

Massachusetts courts employ a term of art to describe assets that are too uncertain or speculative to be divided in a divorce. They call such assets a “mere expectancy interest”. In contrast, courts refer to assets that can be divided as “divisible assets”. In the recent case of Pfannenstiehl v. Pfannenstiehl (2016), the Supreme Judicial Court offered a lightening review of historical cases in which “mere expectancy interests” were distinguished from “divisible assets”:

When interests are properly characterized as mere expectancies, however, they may not be included in the divisible estate of the divorcing parties. We have “drawn a line around certain interests that are so speculative as to constitute nothing more than expectancies, and thus, are not assignable to the marital estate.” Adams v. Adams, supra at 374. Because “[e]xpectancies … embody no enforceable rights accruing during marriage,” Hanify v. Hanify, supra at 188, they more properly are characterized as “anticipated” but “indefinite” opportunities for the future acquisition of assets or income. Mahoney v. Mahoney, 425 Mass. 441, 444, 446 (1997). This is because expectancies have “only theoretical value,” and do not create a fixed entitlement to income. Adams v. Adams, supra at 376. See, e.g., Drapek v. Drapek, 399 Mass. 240, 244 (1987) (future earned income from professional degree); Yannas v. Frondistou-Yannas, 395 Mass. 704, 714 (1985) (anticipated future income from patents); Davidson v. Davidson, 19 Mass. App. Ct. at 374 (husband’s interest in inheritance from living testator who could have altered will).

Clearly, some “expectancy interests” have value. For example, the husband’s impressive resume and work experience in Drapek was unquestionably valuable, but the SJC held that the theoretical “value” of a spouse’s future career was so speculative and theoretical that it could not be treated as a current asset in a divorce case. Meanwhile, in Yannas, the husband clearly owned several patents; however, at the time of the divorce, these patents had no clear, marketable value. The Court acknowledged that the patents might be valuable in the future, but was not willing to assign a substantial value at the time of the divorce, where the future value was dependent on so many factors.

How do Expectancy Interests Affect the Division of Assets? 

All that said, one party’s expectancy interest in a future inheritance can influence the division of assets in a Massachusetts divorce. The Massachusetts divorce statute requires judges to review fourteen mandatory “factors” when determining the division of assets. One of these factors reads as follows: The opportunity of each for future acquisition of capital assets and income.

In the majority of divorce cases, one or both parties’ potential right to receive an inheritance from a parent or family member will have minimal effect on the division of assets. However, if one party appears well positioned to receive a very substantial inheritance – think: $1 million or more – then a judge may factor the likelihood of a future inheritance into the division of assets. While a judge is very unlikely to award the other spouse a direct share of the future inheritance, the division of current assets – i.e. those actually owned by the parties in the present tense – can be influenced by the likely inheritance.

For example, in Pfannenstiehl, which dealt with one party’s status as a beneficiary of a trust, the Court held:

Considering the language of the 2004 trust, and the particular circumstances here, the ascertainable standard does not render Curt’s future acquisition of assets from the trust sufficiently certain such that it may be included in the marital estate under G. L. c. 208, § 34. … As noted, however, the trust may be considered as an expectancy of future “`acquisition of capital assets and income’ in determining what disposition to make of the property that [i]s subject to division.” [Citations omitted.] [Emphasis added.]

The problem with treating a future inheritance as an “opportunity of [a party] for future acquisition of capital assets and income” is the same problem suffered by all of the “factors” under Section 34. Namely, it is very difficult to quantify how a judge should weigh any one of the fourteen mandatory factors, versus the remaining factors. There is broad agreement that the “length of the marriage” is, by far, the most important factor in determining the division of assets in a Massachusetts divorce. After the length of the marriage, however, it is nearly impossible for parties and attorneys to forecast how must weight a probate and family court judge may give to one party’s ability to acquire assets in the future in the context of the thirteen other mandatory factors.

Going Deep in the Weeds: Vaughan’s Affidavit, a Unique Creature of Massachusetts Law

Most states consider a spouse’s potential receipt of a future inheritance irrelevant in a divorce. Massachusetts is somewhat unique in treating future inheritances as a relevant “factor” in the division of assets, despite agreeing with the majority view that such expectancy interests cannot actually be divided. Because a future inheritance is relevant in Massachusetts, a family member whose will may or may not include a divorcing spouse can be deposed or subject to discovery.

In most states, a divorcing spouse who demands to receive a copy of Aunt Rose’s will, or records of Aunt Rose’s assets, would be unsuccessful. In Massachusetts, however, such documents and information are relevant, and therefore fair game in discovery. More than 25 years ago, this issue was addressed in a seldom cited, unpublished ruling of the Massachusetts Supreme Judicial Court known as Vaughan v. Vaughan, SJC Single Justice, No. 91-485, p. 3 (1991).

In Vaughan, the Single Justice of the SJC held that the husband’s parents could be subject to discovery, where the husband’s potential receipt of a future inheritance was relevant to the divorce as a factor under Section 34:

Although it is true that Allan’s expectancy interests are not subject to division, a [probate court] judge, nevertheless, might properly take them into account in determining what disposition to make of the property which is subject to division.

However, the single justice also recognized that family members had privacy interests worth protecting, adding the following:

At the same time, the petitioners have legitimate privacy interests, particularly since they are not parties to the underlying action, and these interests should be protected wherever possible.

The “compromise” between the competing interests of privacy and discovery led to the birth of the so-called “Vaughan Affidavit”, in which a judge may:

[P]rotect [a spouse’s family members] from undue burden by offering to allow them to comply with the discovery order by affidavit rather than by deposition and document request, and by offering to limit the information disclosed to: (1) their approximate current total net worth (plus or minus $500,000), (2) a general description of their current estate plan and wills, and (3) the date, if any, when the estate plan or wills were last amended.

As a result of this obscure case, Massachusetts divorce cases involving a substantial future inheritance for one of both parties have featured the “Vaughan Affidavit”, by which the wealthy family member of a spouse must disclose the three facts above – or face a deposition – when served with a subpoena. Oddly enough, we are not aware of any published opinion of the Appeals Court or Supreme Judicial Court that makes Vaughan official “law” in Massachusetts. Instead, it appears that the practice has been based entirely on a non-binding, unpublished decision of a Single Justice that is more than twenty-five years old.

Gifts and Inherited Property Received During the Marriage and the Treatment of Trusts in Massachusetts Divorce Cases

It is important to distinguish the subject of this blog – future inheritances in divorce cases – from related subjects. For example, how courts treat gifts and inherited property received during the divorce is markedly different from how future inheritances are treated. Moreover, other forms of expectancy interests, especially trusts, can be much more complex than a simple inheritance, resulting in a rather different analysis. Stay tuned, as we will address each of these subjects in future blogs.

About the Author: Nicole K. Levy is a Massachusetts divorce lawyer and Massachusetts family law attorney for Stevenson, Lynch & Owens, located in Hingham, Massachusetts.

Schedule a free consultation with Nicole K. Levy today at (781) 741-5000 or send her an email:

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Questions? Please visit our Frequently Asked Questions: Divorce in Massachusetts page and the SL&O Divorce Series for more information about divorce in Massachusetts.

Disclaimer: 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. You are invited to contact our office. Contacting the office does not create an attorney-client relationship. Please do not send any confidential information to the office until such time as an attorney-client relationship has been established. This blog is considered an advertisement for The Law Office of Stevenson, Lynch & Owens, P.C. The Massachusetts Rules of Professional Conduct broadly govern all advertisements and communications made by attorneys and law firms in the Commonwealth. Generally, legal websites and any other content published on the internet by lawyers are considered a type of communication and an advertisement, according to the Comments to Rule 7.2.

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By |September 8th, 2016|Categories: Division of Assets, Divorce, Family Law|Tags: , , , , |

“Read Your Order,” and Other Lessons from a Life Spent in Court

Massachusetts divorce lawyer Josey Lyne Payne discusses the dangerous fallout when clients fail to carefully read court orders and agreements.

Massachusetts divorce lawyer

Attorney Josey Lyne Payne

“Did you read the agreement you signed?” Every family law attorney has asked the question a hundred times. The scenario is often the same: after a long and exhausting negotiation, two parties finally enter a written agreement in their divorce or family law case. The agreement provides for everything from the parenting schedule the parties must follow, to how child support will be paid, to a dozen other small details that are unique to the case: who picks the children up from soccer practice on Wednesdays? What is the parenting schedule for Thanksgiving? Who is paying the car lease for the next three months? It’s all there in the agreement; the agreement the client now says he or she has not read since leaving court.

As attorneys, we understand why clients don’t read orders and agreements after leaving court. Litigation is stressful and exhausting. Negotiations often include hard compromises that disappoint or frustrate clients. Reading an agreement can trigger feelings of anxiety, depression or panic. And yet, it must be done.

How Hand-Written Agreements Become Orders: Court House Stipulations

When parties to a divorce or other family law case reach an agreement, their attorneys prepare a written stipulation capturing all of the elements of the agreement. Attorneys for divorce litigants can often prepare stipulations by exchanging electronic versions of a draft agreement from the comfort of their respective offices, but not always. Family law is uniquely different from other forms of law in that stipulations often consist of hand-written documents that are prepared by the attorneys in court, on the same day the parties are called to court for one reason or another.

Hand-written stipulations are a function of necessity and compromise at the temporary order stage of family law cases. Family law cases can move extremely quickly, and major decisions about child custody and financial issues are often put before a judge mere weeks (or days) after a complaint is filed, after one party files a motion for temporary orders. There is often no time for attorneys to exchange type-written proposals in advance of a motion hearing. The result is hand-written stipulations that are negotiated under pressure, at the court house, where parties decide to compromise. The alternative to compromise, the parties learn from their attorneys, is to take their chances with an overburdened judge who will hear 50 motions that day, and who will decide hugely important issues for the clients after just 10 minutes or less of argument from the attorneys.  (Note that it is not the judge’s fault that Massachusetts chooses not to adequately fund or staff probate and family courts, which have ten times the case-load of better funded Superior Courts.)

Massachusetts divorce lawyer and Marshfield family law lawyer. Stevenson, Lynch & Owens are Marshfield divorce lawyers and family law attorneys - divorce lawyers and family law lawyers Marshfield, MA 02050.

The stress and exhaustion of a divorce can cause parties to practice avoidance.

If the parties can reach an agreement and write a stipulation, they avoid a contested hearing before the judge. Instead, the hand-written stipulation is submitted to the Probate and Family Court judge, who incorporates the agreement into an Order or Judgment. And just like that, an agreement negotiated between the parties and their attorneys has transformed into a court order, backed by the full power and authority of the Probate and Family Court judge.

The hearing to enter a stipulation as an order is usually short. Unlike the judge’s colloquy that precedes the entry of a full-blow Separation Agreement as a Judgment of Divorce, a judge at temporary order hearings will simply ask the parties: Did you read the agreement? Do you Understand it? Will you comply with is terms? After both parties say, “yes”, the hearing ends and the terms of the stipulation become an order.

What is an Order that Incorporates a Stipulation? It’s just an Order.

A court order represents law that is specific to a particular case and set of parties. What the order says is the law, at least as far as the parties go. The fact that the parties negotiated the terms of an agreement themselves does not negate the enforceability of an order, once the agreement has been incorporated. Indeed, many probate and family court judges believe that parties who voluntarily sign a stipulation have an especially high burden to comply with its terms (terms chosen by the very parties themselves).

After the short hearing to enter the stipulated agreement as an order, the parties typically leave the courthouse with a photocopy of the stipulation that was reached. An official copy from the court will soon follow in the mail. After a long negotiation, parties who leave the courthouse with an order are often exhausted and perhaps even traumatized by the stress of the process. The client may think: Phew, I’m done. Now I can stop thinking about my case, at least for a little while. Unfortunately, things are rarely that simple, though.

The Order is not just a piece of paper that proves the parties went to court. Nor is it a general guideline for how the parties will deal with financial and child-related issues. The Order is a roadmap that dictates exactly how the parties must conduct themselves moving forward. A court Order is tantamount to a mandatory “to do” list. A party has the duty to read the Order, understand it, and abide by it. A court order is literally an Order!

Once the parties leave the building, they cannot simply check-out. The parties have quite literally been ordered to do things. For a party to ensure that they are complying with the Order, the first thing “to do” is review the Orderreally read it, and understand it. The party must then start making note of any tasks and/or deadlines that are required to be met. Parties who fail to read their orders often find themselves before the Court to answer a Complaint for Contempt.

The Typical Temporary Order

For the sake of clarity, let’s review an example of a Temporary Order that was reached by agreement of the parties and incorporated into an Order of the Court: Divorce of Jane Doe v. John Doe.

Jane and John were married in 2005 and have 2 children together, Jason (12) and Julie (10).  John works as a veterinarian and Jane is a stay-at-home mother and homemaker. Jane filed for Divorce on the grounds of Irretrievable Breakdown.

After filing the Complaint for Divorce and serving the complaint and summons on John, Jane’s attorney files a Motion for Temporary Orders, seeking orders that would be in effect during the pendency of the divorce. Jane requests physical custody of the children; child support; and temporary alimony. She also requests the keys to a safe deposit box at Mutual Bank and that John name her as beneficiary on his life insurance policy.

Jane and John, appear in court along with their attorneys on the day of the hearing and negotiate an agreement with the assistance of the probate and family court probation department. Their agreement reads as follows:

Jane Doe, Plaintiff

v.

John Doe, Defendant

It is hereby agreed by the parties that the following stipulation shall be made an Order of this Court pursuant to the Complaint for Divorce filed December 29, 2015.

  1. The parties agree to joint legal custody and primary physical custody with the Mother.
  2. Father shall have parenting time with the children Wednesday afternoons starting at 3:00 pm and ending at 8:00 pm and every other weekend starting Friday at 3:00 pm and ending Sunday at 8:00 pm.
  3. Beginning January 1, 2016, Father shall pay the sum of $400.00 per week as child support to Mother directly by check or money order every Friday.
  4. Beginning January 1, 2016, Father shall pay the sum of $200.00 per week as temporary alimony to the Mother directly by check or money order every Friday.
  5. Father shall deliver keys to the safe deposit box held in the parties’ names at Mutual Bank to Mother no later than January 1, 2016.
  6. Father shall name Mother as beneficiary of his life insurance policy in the amount of $100,000.00 no later than January 1, 2016.
  7. Mother shall name Father as beneficiary of her life insurance policy in the amount of $100,000.00 no later than January 1, 2016.
  8. Mother shall turn over all jewelry inherited from Father’s grandmother no later than January 1, 2016.

The agreement took hours to negotiate and included provisions that were not requested in the initial Motion filed by Jane.

By the time the judge enters the agreement as an Order, Jane and John are exhausted and would like to forget about the whole day.  Unfortunately, this is not an option.  There are things that each must do, per the Order of the Court.

John MUST begin making support payments to Jane every Friday.

John MUST deliver the keys to the safe deposit box to Jane by January 1.

John and Jane, both, MUST update their life insurance beneficiary designations by January 1.

Jane MUST turn over all jewelry inherited from John’s grandmother by January 1.

If either parties misses compliance with any of these provisions, he or she could face a Complaint for Contempt. This includes the possibility of having to also pay for the other party’s legal fees and costs!  Even if they did not comply with the Order due to an oversight (i.e.  accidentally failed to comply), they have still breached an Order and could face legal consequences.  Here’s an example:

Jane leaves the courthouse remembering only her original Motion for Temporary Orders (what she asked for). The Motion did not include her naming John as a beneficiary on her life insurance policy and did not require her to turn over jewelry to John. Jane forgets to give John his grandmother’s jewelry before January 1 and does not designate John as beneficiary to $100,000.00 of her life insurance policy.

On January 2, John asks Jane for proof of the beneficiary designation and his grandmother’s jewelry, which was due to him the day before.  Jane has forgotten. She does not give John the jewelry, nor did she make him the beneficiary of her life insurance policy.

John files a Complaint for Contempt.  At the Contempt hearing, Jane is found in Contempt and ordered to comply with the Order AND to pay John’s legal fees and costs!

It is important for parties to recognize that the obligation to comply with a Court Order is their responsibility alone.  The opposing party has no obligation to remind them of their duties.  The Order also doesn’t require a party’s lawyer to complete the required task for their client.  The parties must comply with the terms themselves.

Parties best protect themselves by taking the following steps as soon as possible after an Order is issued:

  1. Read your Order word-for-word;
  2. Make sure you understand what you are required to do (if you don’t understand, ask your attorney to explain it to you);
  3. Make a note on your calendar of dates you must complete certain tasks by; and
  4. Do what you are ORDERED to do.

Remember: it is the parties who are bound by the Order, not their attorneys.

About the Author: Josey Lyne Payne is a Massachusetts divorce lawyer and Massachusetts family law attorney for Stevenson, Lynch & Owens, located in Hingham, Massachusetts.

Schedule a free consultation with Josey today at (781) 741-5000 or send her an email:

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DisclaimerThe 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. You are invited to contact the office. Contacting the office does not create an attorney-client relationship. Please do not send any confidential information to the office until such time as an attorney-client relationship has been established.  This blog is considered an advertisement for Stevenson, Lynch & Owens, P.C.. The Massachusetts Rules of Professional Conduct broadly govern all advertisements and communications made by attorneys and law firms in the state. Generally, legal websites and any other content published on the internet by lawyers are considered a type of communication and an advertisement, according to the Comments to Rule 7.2.

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By |August 29th, 2016|Categories: Divorce, Family Law|Tags: , , , |

Harassment Orders in Massachusetts: Are They Issued Too Easily?

Massachusetts family law attorney James M. Lynch reviews harassment orders in Massachusetts following a recent Appeals Court decision.

Massachusetts divorce lawyer

Attorney James M. Lynch

A recent Massachusetts Appeals Court case illustrates the difficulties presented to District Court judges by the 6-year old harassment prevention statute, G.L.c. 258E and seems to suggest, ever so gently, that perhaps the issuance of harassment prevention orders has become a bit too automatic in Massachusetts.

Gassman v. Reason (2016), involved two women who lived in the same Brighton apartment building. Gassman, who lived directly above Reason’s apartment, played the piano frequently. Reason complained directly to Gassman about the noise and eventually called the police on her. Reason even called the police and complained Gassman had assaulted her. However, it was Gassman – the piano player – who sought and obtained the harassment prevention order against Reason. Gassman testified that she had an anxiety disorder and that Reasons complaints to the police made her fearful. After a hearing, the judge ordered Reason to stay 10 yards away from Gassman inside their apartment building – and 50 yards away outside the building. The order was extended twice for a period of 2 years and Reason appealed the last extension.

A Question of Mootness: Even Expired Orders Have Negative Consequences for Defendants

During the appeal period the harassment order simply expired and so the Appeals Court had to decide whether the issue was moot. The Court concluded that it was not moot because the party challenging such an order has an ongoing concern about the lingering effects of a wrongfully issued order. Those lingering effects include the potential adverse impact of an expired or terminated order might have in the event of future applications for an abuse prevention order.

The Court went on to cite the case of Lawrence v. Gauthier, 82 Mass. App. Ct. 904, 904-905 (2012), in which the Appeals Court noted that “a wrongfully issued harassment prevention order [pursuant to G. L. c. 258E] poses the same concerns for a defendant about collateral consequences as does a wrongfully issued abuse prevention order [issued pursuant to G. L. c. 209A].” Further, the Court noted that “the order simply expired at the end of the extension period and this defendant has neither a judicial termination of the order nor an order that law enforcement should destroy all copies of it.” For these reasons, Gassman’s appeal was allowed to proceed, despite the expiration of the order prior to the hearing before the Appeals Court.

Busy Massachusetts Courts Enter Harassment Orders Without Considering the Consequences for Defendants

Massachusetts harassment order lawyer

A harassment order involving parties who live in the same building poses special challenges.

The Gassman Court discussed the challenges busy Massachusetts judges face when applications for harassment orders are filed, but cautioned against reflexive entry of such orders on the mistaken belief that such orders “cannot do any harm”:

Civil harassment cases present a significant challenge in busy municipal and district courts, as the record in this case illustrates. Applications for such orders are filed by feuding neighbors, as here; expressive bar patrons, see id. at 415; angry hockey or baseball parents, see Seney, 467 Mass. at 58; and contentious roommates, see Smith v. Mastalerz, 467 Mass. 1001 (2014), among others. The inclination to issue an order for the parties to stay away from one another, concluding that such an order cannot do any harm, is understandable.

That observation by the Court is one to which many practicing attorneys in the district courts will attest. “Nevertheless,” the Court concluded “harassment prevention orders issued pursuant to G.L.c. 258E carry significant collateral consequences that cannot be undone completely, even when a court later determines that the order “should not have issued in the first place”.

Three Incidents of Harassment Required

The Court then examined the definition of harassment set out in G.L.c. 258E §1(i): “3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property.”

No Need for Fear to be Reasonable, but Defendant Must Have Malicious Intent

The Court went on to emphasized that the 3 qualifying acts must be shown to have been “maliciously intended” before setting out the crux of its holding. As to whether Gassman was placed in fear, the Court noted that “there is no reasonable person test for judging that fear … the question is only whether Gassman was in fact placed in fear, not whether the fear was reasonable.” This is the part of the statute and its interpretation that troubles lawyers the most – i.e., that there is no requirement that the fear be reasonable. However, the Court was quick to add that the applicant must also prove that the defendant “acted with intent to cause fear, intimidation, abuse or damage to property.”

Regarding intent, the Court cited existing precedent as follows:

“[A]n essential element of civil harassment is intent. Conduct may constitute civil harassment where an individual wilfully and maliciously uses `fighting words’ that are `a direct personal insult addressed to a person’ and `so personally abusive that they are plainly likely to provoke a violent reaction and cause a breach of the peace,’ . . . or uses `true threats,’ such as `words or actions that — taking into account the context in which they arise — cause the victim to fear such harm now or in the future.'” The conduct must have been intended to cause, and must actually cause, abuse (defined as “attempting to cause or causing physical harm to another or placing another in fear of imminent serious physical harm”), intimidation, fear of personal injury, or damage to property.

 

Without Malicious Intent, no Order Should Issue

So, while the Appeals Court could not question the judge’s finding that Gassman was in fear, the Appeals Court found that there was no evidence that Reason intended to cause any harm at all to Gassman and, thus, there was insufficient evidence to support the second extension of the harassment prevention order. In summary, the Court noted the following about the case:

Despite the fact that the order in this case was issued or extended by three different judges, there simply is no evidence that Reason intended to cause any harm at all to Gassman, much less that she wilfully committed three or more acts, aimed at Gassman, each with the intent to cause fear, intimidation, abuse, or damage to property. … There is no evidence of a true threat or of fighting words. Nor can repeated complaints about noise from the upstairs apartment reasonably be described as intimidation, intending to cause fear of physical harm or damage to property. … Even considering as a whole the interaction between these two women in the same apartment building over a period of years, we are satisfied that there was insufficient evidence to support the second extension of the harassment prevention order.

It is important to note that the only thing under appeal was the second one year extension of the harassment order and not the validity of the original order itself. That said, it is abundantly clear that the Appeals Court felt that the harassment order never should have issued in the first place.

About the Author: James M. Lynch is a Massachusetts family law attorney for Stevenson, Lynch & Owens, located in Hingham, Massachusetts.

Schedule a free consultation with James M. Lynch today at (781) 741-5000 or send him an email:

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Disclaimer: 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. You are invited to contact our office. Contacting the office does not create an attorney-client relationship. Please do not send any confidential information to the office until such time as an attorney-client relationship has been established. This blog is considered an advertisement for The Law Office of Stevenson, Lynch & Owens, P.C. The Massachusetts Rules of Professional Conduct broadly govern all advertisements and communications made by attorneys and law firms in the Commonwealth. Generally, legal websites and any other content published on the internet by lawyers are considered a type of communication and an advertisement, according to the Comments to Rule 7.2.

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Who Pays for School: College Expenses and Massachusetts Child Support Agreements

Massachusetts divorce lawyer Nicole K. Levy reviews the complexities of addressing college expenses in divorce and child support agreements.

Massachusetts child support lawyer

Attorney Nicole K. Levy

In my previous blog on college expenses in family law cases, I reviewed the complicated relationship between child support and college expenses in Massachusetts, with a focus on the lack of clarity surrounding how child support is impacted by one or both parents’ payment of college expenses. As detailed in that blog, the child support picture is often unclear in cases involving college expenses. However, ambiguity can also arise out of the need to define and determine what constitutes a “college expense”, what payments should be made by a parent to a child’s college or university, and which parent is obligated to make these payments.

If parents are divorced, there is likely a provision in their separation agreement that outlines their respective obligations. However, more often than not, this language is vague and does not outline clear obligations of the parties, or perhaps even the child’s financial responsibility for college. Common sense tells us that it is important for each provision of a separation agreement be clear, and each term defined, when drafting or interpreting an agreement. Any ambiguity can lead to different interpretations, which means the parties may ultimately be back in court on a contempt or a modification.

Why are College Expenses so Poorly Defined in Massachusetts Child Support Agreements?

Given the need for clarity in final agreements, the lack of clarity surrounding college expenses in Massachusetts child support agreements seems puzzling at first glance. However, this ambiguity is a function of Massachusetts law. In Passemato v. Passemato (1998), the Supreme Judicial Court held:

[A]s a general rule, support orders regarding the future payment of post-high school educational costs are premature and should not be made …

This point was recently amplified by the Appeals Court in its unpublished decision in Kurtin v. Kurtin (2016), in which the Court remarked that orders obligating a party to contribute to a child’s college expenses should not be made “until the child is already attending, or is about to attend, college”. The picture is further obscured by the Massachusetts Child Support Guidelines (2013), which provide that “contribution to college costs is not presumptive” for parents. In summary, Massachusetts judges can (and often do) order parents to contribute to their children’s college costs, but such payments are not mandatory under the law, and should not be ordered by a court “until the child is already attending, or is about to attend, college.”

Needless to say, saving for college requires a great deal of planning, and selecting an appropriate college or university is greatly impacted by the availability of funds for the child. The failure of Massachusetts appellate courts and lawmakers to address such basic, practical issues facing so many families is troubling. Nevertheless, parties and attorneys must make the best of the existing legal framework, warts and all.

Defining College Expenses in Massachusetts Child Support Agreements

Generally speaking, college and/or trade schools have costs associated with the beyond the core “tuition and fees”. There are costs for dorm rooms, meal plans, books, application fees, lab fees and a long list of other expenses that are directly payable to the school. On top of costs paid directly to schools, here are travel expenses, parking costs, supplies, rent and utilities for off-campus housing, and computer and technology costs that students must pay out of pocket to attend their school of choice. Finally, there are ancillary “personal expenses” such as car insurance, cell phone bills and spending money that most students encounter in some form or fashion.

What constitutes a “college expense” that one or both parents should pay on behalf of their children is a subject that depends on the eye of the beholder. One person may think all of the costs above are “college expenses” that a child’s parents should pay in full. Another may believe that a child who chooses to live in a dorm – instead of commuting to school from a parent’s home – should be responsible for his or her room or board costs. Still others feel that only core “tuition and fees” should be covered. Finally, many parents will only contribute to a portion of a child’s tuition, leaving the remaining expenses to student loans.

Massachusetts divorce lawyer and Massachusetts family law lawyer. Norfolk county and Plymouth county.

Saving for college is especially for divorce and separated families.

Whatever your feelings on college, the point is that there are multiple interpretations of what constitutes a college expense. While paying a percentage of tuition may be affordable, paying a percentage of each itemized portion that appears on a tuition bill may require borrowing. One takeaway is this: even if Massachusetts law actively discourages judges from assigning college payment responsibilities to one or both parents, years in advance of college, there is nothing stopping parties from identifying what constitutes a “college expense” in a child support agreement.

Think of it this way: defining “college expenses” in a child support agreement is one less thing for parties to disagree about in the future, when the time finally comes to determine how much each parent should pay for college.

Consent Provisions: Conditioning College Payments on Each Parents’ Participation in College Selection

A defining feature of most cases involving the payment of college expenses is that the children involved are typically adults, in the sense that most high school graduates are 18 or older. Granted, Massachusetts law provides that adult children may not be emancipated for child support purposes until they turn 23, but the fact remains, an 18-year old is an adult. There is nothing forcing an adult child to include his or her parents in the college selection process at all.

In my previous blog, I touched upon the idea of a parent’s right to “consent” in a child’s choice of higher education in Mandel v. Mandel (2009), where the Appeals Court noted that parent who takes no interest in the college selection process waives the right to later complain about not being involved in the college selection process. Mandel reflected the Appeals Court’s view in an earlier case, Hamilton v. Pappalardo (1997), in which the Court noted that one factor that courts should consider when determining a parent’s obligation to contribute college is “ the extent to which [a party] unjustifiably may have been excluded from the [college] decision-making process.” Implicit in these cases is the notion that a parent should generally have some input in the college selection process if a court is going to order that parent to pay.

This issue recently arose in the Appeals Court’s unpublished opinion in Saly v. Saly (2016). In Saly, the child attended one college, then transferred to another school after a brief leave of absence.  Her father argued that he had not explicitly consented to the second school, and since the parties’ agreement required that the choice of college be made jointly, he was not obligated to contribute to the expense.

The probate and family court judge in Saly disagreed with the father’s view, noting that the father was aware of his daughter’s intentions to transfer, was informed by the mother about the transfer, and had communicated to both the mother and this child about the cost and registration.  The judge noted that there was simply no evidence of his objection to the transfer. The father’s core argument – that he had not agreed to the transfer because he never specifically said, “I agree” – was deemed unpersuasive. The judge found that if father objected to the transfer, he needed to say it at the time.

Like most issues surrounding college expenses in Massachusetts, the issue of parental “consent” is poorly defined. Hamilton and Mandel talk about whether a parent was “unjustifiably excluded” from the college selection process, but do not require a parent to “consent” to a college choice. In Saly, however, something much closer to consent was required because the parties’ agreement stated that the “choice of college or university shall be made jointly [by the husband and the wife], with due regard to the child[]’s wishes, welfare, needs and aptitudes.”

Saly reflects how parties can shape future disagreements over college costs by entering agreements that specifically define how college decisions should be made, even if the exact amount that each party will contribute to college is left undefined. In Saly, the parties’ agreement required the college decision to be “made jointly” by the parties. As a result, the father very nearly avoided having to contribute to the child’s new school on the grounds he had not explicitly agreed to the transfer. Had the agreement included more open ended language about college selection, the father would have been limited to the common law rule, which holds that one parent’s unjustifiable exclusion from the selection process is one of several factors affecting the apportionment of college expenses.

Another take away from these cases is how important it is for parents to understand when discussions of college and higher education begin to manifest. Some children begin making college plans the moment they enter high school. Others will wait until their senior year to seriously consider one college versus another. An agreement can formally define when the selection process will begin (i.e. “the parties agree to discuss the selection and payment for college prior to the conclusion of the child’s junior year in high school”). If the timing is undefined, each parent must be mindful of including the other parent in college discussions to avoid a future argument over whether the other parent was unjustifiably excluded from the discussion.

Clearly, the ultimate cost of college is largely driven by the choice of school. Whatever percentage a parent ends up being required to pay, it is crucial for parents to take an active interest in which college their child attends early in the process. Sitting back and refusing to participate will not absolve a parent from the obligation of contributing to college costs. Indeed, if a child is considering a school that is drastically out of a party’s price range, this should be clearly addressed and communicated to the other parent, in writing, well in advance of the final selection.

Paying for College: the Various Ways that Massachusetts Parents Divide College Costs

After specifying what constitutes a college expense, defining when the college selection process will begin, and determining what level of parental agreement will be required, parties are left with the million-dollar question: how much will each parent pay? As noted above, Massachusetts law disfavors judgment orders that fix a parent’s obligation to pay for college years in advance of a child’s attendance. For parents of teenagers, however, the apportionment of college is a pressing issue.

(Before proceeding further, it is important to note that college payment provisions are often ambiguous by design. In family law, it is not always possible to draft a perfect agreement. Instead, agreements are the product of compromise. There are a variety of reasons why one or both parties would want to avoid a clear order delineating who must pay what for college. Indeed, there are sometimes strategic goals that call for attorneys to make certain provision of an agreement intentionally ambiguous.)

Whether parents are getting divorced during their children’s teenage years, or one or both parties has/have filed a complaint for modification to update a decade-old agreement, vague language needs to be molded into something concrete as the reality of college expenses creep closer.

There are multiple ways to divide up college expenses, however, the underlying issues will always be the (1.) the bottom line cost of attendance, (2.) parties’ income, assets and ability to contribute to college without borrowing, (3.) each party’s ability to contribute or qualify for a loan, and (4.) how much debt the child will be burdened with for his or her share of the cost.

Clearly, one simple way to divide college expenses is to simply say both parties will “share in the payment” of all “college expenses”. However, even this is ambiguous. Does this mean share equally? Does this include contributions from the child? What if one party earns substantially more than the other? What if one party is paying child support?

As discussed in my earlier college expense blog, some parties will “cap” the total contributions based on the cost of room, board and tuition at UMass Amherst. Still other parents will take this further, entering an agreement that provides that each parent and the child will each be responsible for a third of the college expenses, subject to a cap based on the cost of UMass Amherst. Such formulas can work well – as long as the child attends a state university. If the child attends private college, however, parents often find out that it is simply impossible for children to obtain sufficient student loans to cover the difference in cost.

An even simpler “cap” involves selecting a total dollar amount the parents will be required to contribute. For example, parties might agree that their combined contribution will not exceed $50,000 in a given year. Parties can also cap each parents’ contribution based on their respective incomes. Thus, a parent who earns twice as much as the other parent may be responsible for 2/3 of the college costs, with the lesser-earning parent responsible for 1/3 of the costs, up to a total cap of $50,000. The child would then be responsible for borrowing amounts exceeding $50,000.

Still other parents might obligate the child to contribute to specific costs. For example, some parents may require a child who ops to live on campus (rather than commuting from home) to pay for his or her own room and board using employment income or loans.

The combinations are nearly limitless.

The key component in drafting an agreement, or interpreting an already existing agreement, is to weigh the options that are available, and play out each scenario in a manner that allows for predictability for the parties and the child.  Absent a change in circumstance, recalculating contributions each and every year of a child’s higher education is time consuming, costly, and generally unproductive. Parents with children about to attend college must pick a formula and go with it, or a judge will do it for them.

College Savings Funds: a Useful Planning Tool

If a client has young children, I often encourage him or her to start a college fund. Any amount can be helpful, even if the child isn’t particularly young, and I am always surprised by the number of parents I encounter who have a child who is now in high school, an agreement that is silent on college expenses, and no plan for paying for college. As noted above, Massachusetts disfavors orders that commit parents to paying a fixed amount towards college years in advance. One way to mitigate this issue is through the use of college funds, such as 529 accounts.

Language that requires parents to contribute to one or more college funds can be an attractive middle ground for parties who can’t agree on the final apportionment of college, but still want to take some steps to prepare for college. The beauty of college funds is that any amount helps. Even $250 a year from each parent gives a child something to start with once college arrives, and because 529 accounts are often invested in mutual funds, even modest contributions can show significant growth as years of compound interest pile up.

There are many ways to craft language regarding the use of college funds for children. Each party’s contribution to the fund can be applied directly to the saving party’s portion; indeed, I have even seen agreements in which a party who contributes early will be credited for 125% of the value of his or her contributions when college finally arrives. In short, lawyers and parties should think outside of the box when preparing creative ways to incentivize any college savings that a party is willing to make in advance of college.

It is important to define exactly how college contributions will be credited, particularly if the agreement itself does not specifically dictate what each party will be required to pay in the final equation. Attorneys should use detailed language that explains exactly how college fund monies will be credited towards each party’s college contribution, taking into account the various ways that college costs might be divided in the future. Drafting this piece of an agreement must be done carefully and precisely so as to avoid potential conflicts in the future.

College Savings Funds from Before the Divorce: a Potential Complication

College savings funds are a great way for divorced or separated parents to start saving for college, but the picture gets murkier when it comes to college funds that accrued prior to the divorce. A typical disagreement in such cases might arise out of college fund contributions made by a child’s grandparents. Should the mother receive a “credit” for contributions made over the years by maternal grandparents, while the father is credited for paternal contributions? Similarly, control over funds can also be an issue when only one party has access to the account over the course of the marriage.

A recent example of such a conflict is demonstrated in the Appeals Court’s unpublished decision in Lattell v. Lattell (2016)After a long term marriage, the parties were divorced following a trial in 2010. (Because the matter went to trial, they had no separation agreement.) At the time of the divorce, certain college savings accounts had already been designated for the children’s college education. The divorce judgment provided, “these funds shall be the first funds applied to the children’s college costs and expenses after any scholarships or financial aid.” Moreover, the divorce judgment obligated the parties to establish a second college expense accounts for each child totaling $160,000, which were to be used once the existing account was exhausted. However, the parties’ respective responsibilities once the first account and the second account were depleted was not determined.

Both parties contributed their $80,000 share to the newer accounts, but this proved insufficient to cover the full cost of the children’s colleges. Father maintained that once the second account was exhausted, he was absolved of any further responsibility to pay for college.  He interpreted the agreement to read that the only requirement was to fund the second account, and not to continue contributing once that account was used up.  Mother, on the other hand, noted that the judgment had not capped their obligations, and the remaining costs needed to be shared. The Appeals Court agreed with the mother, noting that the key sentence in the judgment read:

“Those funds [that is, the funds in the newly created accounts] will be invested prudently, and shall be used exclusively for the costs of the children’s college educational expenses, which shall be shared by the parties equally after exhaustion of the UGMA funds already established by the Wife.”

Although the language is somewhat confusing, the Appeals Court determined that the judgment created two separate obligations: (1.) each party should contribute $80,000 to new college funds and (2.) the parties share equally in college expenses after the first college funds were exhausted. In other words, the father’s $80,000 contribution to the new college funds did not excuse the father from his overarching obligation to share equally in college expenses not covered by college funds. Indeed, the Court simply viewed the newer college funds as saving mechanism that each party would use in furtherance of their general obligation to share equally in all college costs not covered by the existing college funds.

Contrary to the father’s position, having the parties fund the second accounts to secure payment for college expenses did not mean that the trial judge excused the parents from making any further contributions to college. (It should be noted that the judge in the original divorce deviated from the usual rule against ordering college payments years for very young children. Probate and family court judges are most likely to deviate from this rule when faced with parents who (a.) have the means to save for college, but (b.) appear to lack the responsibility or willingness to do the saving.)

A carefully drafted agreement will consider as many situations as possible; it will consider what the expenses are, who should pay, how they should pay, and what, if any funds should be established.  If an agreement is already in place, but contains ambiguous or generic language, it is similarly important to begin deciphering the real life obligations of the parties.  It is not advisable to wait until the summer before college to review and determine your responsibility.

The Ever Increasing Cost of College: How Skyrocketing College Costs Complicate Family Law Cases

It is no secret that college costs have been exploding in the United States for many years. With the rise in costs has come an explosion in student loans that has not only encompassed children, but many parents forced to execute “Parent Plus” or private loans. Many parents do not understand just how limited federal loans are.  For dependent children (i.e. children whose parents receive dependency exemptions), federal student loans max out at $31,000 over four years, with dependent first year undergraduate students able to borrow a maximum of $5,500 for the year.

Now consider this: the cost of one year of full-time, on-campus attendance for a student at UMass Amherst is $28,784 per year. Do the math: a student’s $5,500 federal loan won’t even cover a quarter of his or her first year at UMass Amherst. Parents who require children to contribute 1/3 of the cost of room, board and tuition at UMass should know that federal loans will not cover 1/3 of the cost of UMass.

What the student’s options? Well, they can apply for private student loans, particularly if they only need a small amount of additional funds to cover their costs.  However, most 18-year olds lack the credit history to obtain a large private loan without a parent co-signor. The other option is for parents to borrow using federal Parent Plus Loan, which put parents on the hook for any student loans payments their children fail to pay.

The reality is that many middle class Americans can no longer send their children to top-flight state universities, much less private schools. The problems is that too few Americans – including parents, family law attorneys, and even probate and family court judges – understand this reality.  Parents in the heat of a divorce often focus on what they may must pay towards college versus the other parent. What they fail to recognize is whether college can be afforded at all.

Here is an example: let’s say that a 55-year old stay-at-home mother who has been out of the workforce for 15 years is about to get divorced.  Under the divorce agreement, she will receive 50% of her husband’s 401K and equity from the marital home that have a combined value of $375,000. Perhaps she will receive some alimony, but her judge thinks she can get a job, and she settles for alimony equal to 20% of her husband’s $120K/year salary (i.e. $24K per year in alimony). On the surface, this woman is doing better than many Americans, since at least she has some savings.

Now consider what happens to our hypothetical woman if she agrees to borrow 1/3 of the cost of UMass Amherst ($9,000 per year) via Parent Plus loans for each of her three children, who all attend college. This leaves her with $108,000 in student loans, which she alone is obligated to pay. The interest rate is 6%. Here is this woman’s reality: she will pay nearly $1000 per month in interest for the rest of her life. This is more than half of her alimony order, and will likely be more than half of her Social Security benefits. These loans will be financially devastating to our woman, who will likely be flat broke in less than 20 years.

The media talks a lot about how young Americans are crippled by student loan debt, but at least they are young. At least they have a chance to become employable, increase their earnings and pay off the debt. The point is this: parents who are over 50 must be extremely careful about taking on student loans, since they have far fewer working years to pay off the loan versus their children. There was a day when most hard-working American parents could send their child to a decent college, but that day has passed. Parents must think very carefully before committing to student loans late in life, where the effects of such loans will linger for many years after their children have become emancipated.

About the Author: Nicole K. Levy is a Massachusetts divorce lawyer and Massachusetts family law attorney for Stevenson, Lynch & Owens, located in Hingham, Massachusetts.

Schedule a free consultation with Nicole K. Levy today at (781) 741-5000 or send her an email:

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Questions? Please visit our Frequently Asked Questions: Divorce in Massachusetts page and the SL&O Divorce Series for more information about divorce in Massachusetts.

Disclaimer: 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. You are invited to contact our office. Contacting the office does not create an attorney-client relationship. Please do not send any confidential information to the office until such time as an attorney-client relationship has been established. This blog is considered an advertisement for The Law Office of Stevenson, Lynch & Owens, P.C. The Massachusetts Rules of Professional Conduct broadly govern all advertisements and communications made by attorneys and law firms in the Commonwealth. Generally, legal websites and any other content published on the internet by lawyers are considered a type of communication and an advertisement, according to the Comments to Rule 7.2.

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Appeals Court MedPay Decision: A Victory for Massachusetts Consumers

Massachusetts personal injury attorney James M. Lynch reviews a recent Appeals Court decision impacting how PIP and Medpay affect coverage in motor vehicle accident cases.

Massachusetts divorce lawyer

Attorney James M. Lynch

A recent unpublished opinion by the Massachusetts Appeals Court shed significant light on the grey areas which have existed between personal injury protection (PIP) coverage and medical payments (MedPay) coverage under the standard Massachusetts Automobile Insurance Policy and private health insurance coverage. A cautionary note: unpublished opinions Appeals Court Rule 1:28 are directed only to the parties of that case being decided and may not be cited as binding precedent. They may be cited for persuasive effect, however, and the case of Kirby v. Liberty Mutual Insurance Company (2016), clarifies the auto insurers’ MedPay coverage obligations when there is a medical insurance lien asserted against a personal injury recovery.

Kirby was the driver of a car involved in an auto accident in which she sustained injuries resulting in over $13,000 in medical expenses. Her policy with Liberty Mutual provided $8,000.00 in PIP benefits (compulsory in Massachusetts) and $5,000 in MedPay coverage (optional coverage). She was also covered under a health insurance policy issued by Unicare State Indemnity Plan (Unicare).

Liberty Mutual paid out the initial $2,000.00 under PIP, after which Unicare’s coverage became the primary insurer and Unicare paid the remainder except for copayments and other medical expenses not covered under its policy, totaling another $1,283.92. By law, PIP was obligated to pay those uncovered expenses totaling and Liberty Mutual paid them. Unicare then asserted a statutory lien against Kirby’s personal injury case (against another insurer) to recover the amounts it paid out on Kirby’s medical bills not covered by PIP. To satisfy and release the lien, Kirby paid $4,956.67 out of her settlement to Unicare and then submitted a claim to Liberty Mutual under her MedPay coverage. Liberty Mutual denied and Kirby sued in District Court where the judge agreed with her and found against Liberty Mutual.

On appeal, Liberty Mutual argued that MedPay was unavailable to Kirby because she did not exhaust all $8,000 of her PIP benefits. But the Appeals Court held the PIP was not available to Kirby when she incurred the $4,956.67 in medical bills because she was required, under the terms of her Liberty Mutual policy, to submit them to her health insurer, Unicare. The Court went on to hold that there was no danger of a double recovery to Kirby because she was actually out of pocket $4,956.67.

This was a common sense decision by the Appeals Court in the face of Liberty Mutual’s argument. For Liberty to argue that, since Kirby had not exhausted her full $8,000 in PIP benefits when the terms of its policy precluded her from getting anything beyond $3.283.93 in PIP, was completely cynical. And to then use it to deny MedPay coverage that Kirby opted to pay for would have rendered such coverage illusory. The Kirby case represents a victory for the consumer.

About the Author: James M. Lynch is a Massachusetts personal injury lawyer for Stevenson, Lynch & Owens, located in Hingham, Massachusetts.

Schedule a free consultation with James M. Lynch today at (781) 741-5000 or send him an email:

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Disclaimer: 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. You are invited to contact our office. Contacting the office does not create an attorney-client relationship. Please do not send any confidential information to the office until such time as an attorney-client relationship has been established. This blog is considered an advertisement for The Law Office of Stevenson, Lynch & Owens, P.C. The Massachusetts Rules of Professional Conduct broadly govern all advertisements and communications made by attorneys and law firms in the Commonwealth. Generally, legal websites and any other content published on the internet by lawyers are considered a type of communication and an advertisement, according to the Comments to Rule 7.2.

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By |August 17th, 2016|Categories: Personal Injury|Tags: , , , , , , |