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Call Stevenson, Lynch & Owens today to speak with a Massachusetts divorce lawyer, family law attorney or personal injury attorney. Our office is conveniently located near the Derby Street Shops in Hingham, Massachusetts. From Hingham, we have served clients throughout Massachusetts for more than 20 years. Call and schedule a free consultation today at (781) 741-5000.

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“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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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 is just a bit too automatic.

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.

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.

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 municipal and district court judges face when applications for harassment orders are filed by feuding neighbors, expressive bar patrons, angry hockey or baseball parents or contentious roommates. It is noteworthy that the Court also recognized that there was an “inclination” for judges to issue such orders because “such an order cannot do any harm”. 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”.

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.”

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 the applicant also prove that the defendant “acted with intent to cause fear, intimidation, abuse or damage to property.” 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.

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 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.

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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: , , , , , , |

Income Attribution in Massachusetts Child Support and Alimony Cases

Massachusetts divorce lawyer Nicole K. Levy reviews the attribution of income in child support and alimony cases in Massachusetts.

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Attorney Nicole K. Levy

In cases involving child support and alimony, a Massachusetts probate and family court may “attribute” income to a party the judge feels in underemployed. Judges review each parties’ income, as well as other factors, to determine the appropriate amount of child support or alimony orders in every case. The task of determining each party’s income seems straight-forward on its face, but this can become a complex topic if one or both parties are earning less than they have in the past.  In such cases, a party’s “income” may not be limited to their wages at the time of the litigation.  A common question that arises in such cases is whether a party’s earning capacity exceeds their actual earnings. In other words, does a party have the ability to work and earn more money, but chooses not to?

A judge who determines that a party is underemployed may attribute income to that party. Real world examples when attribution may be appropriate are numerous. Most commonly, attribution is appropriate when a party has the skills and ability to earn more, but chooses not to seek full employment due to a voluntary job change.  If a party voluntarily quit his or her job, or has chosen to become employed at a lower pay rate, the threat of attribution is at a peak. Indeed, even if a party’s earning capacity is modest, a judge may attribute income if the party has the time and ability to work, but has failed to find a job. Winning an attribution argument at trial, however, is not as easy as one might imagine.

What does Massachusetts Law Say about Attributing Income?

A judge is not required to attribute income to a party, and the court has wide discretion to decline an income attribution argument.  Just because a party was previously employed and is now unemployed – or was previously employed at a higher pay rate – does not guarantee the prior earnings will be used to calculate support. A party’s current income is the starting point in any alimony or child support, and it is important to always be mindful that an attribution represents an exception to the ordinary rule.

Massachusetts divorce lawyer.

Divorce cases periodically include arguments for income attribution.

There are a variety of factors that judges examine when making a determination regarding attribution.  The Massachusetts Child Support Guidelines provide that attribution of income to a party may be appropriate where the judge has made a finding that a party is capable of working, but is unemployed or underemployed:

If the Court makes a determination that either party is earning less than he or she could through reasonable effort, the Court should consider potential earning capacity rather than actual earnings in making its order.

Massachusetts case law provides additional insight. For example, in C.D.L. v. M.M.L (2008), the Appeals Court noted that “[a]ttribution of income is particularly appropriate when a judge determines that a party … is voluntarily earning less than he or she is capable of earning through reasonable effort.” However, in Flaherty v. Flaherty (1996), the Court fleshed out the opposite scenario:

Where … there is no evidence that a change in job status was voluntary, the party is making a reasonable effort to secure additional income, and he or she has no additional assets with which to pay the increased support order,” attribution of income is not proper.

In attribution cases, a judge will review the party’s educational background, skills and training, current health, a resume or history of employment, the party’s employability in the current market. (Note that a person can be qualified for a certain job, but if that job does not exist in the current market, an attribution could be inequitable.)  A judge will also review and determine whether the party is making reasonable efforts to find new employment.

Ultimately, if a judge determines that a party is earning less than he or she could by way of reasonable efforts, the judge may (but not must) consider his or her potential earning capacity rather than the party’s actual earnings. Either party can face an order for attribution in a support case. However, attribution most commonly arises when a judge determines that the support provider, and not the recipient, is voluntarily earning less than he or she could through reasonable efforts.

Attribution is far from automatic in every case. For example, in Frederick v. Frederick (1990), the Appeals Court cautioned “against relying unduly on the income-earning potential of a wife . . . who has been out of the regular job market for decades.” However, if a support paying-paying spouse loses or her job, and his or her lifestyle has not changed despite the job loss, a judge may be more inclined to attribute income. For example, C.D.L. v. M.M.L (2008), the Appeals Court found:

[A]s to the husband’s living expenses, the judge further found that “[t]he Husband has taken no steps to diminish his anticipated lifestyle,” and that an attribution was in order so as not to “diminish the Wife’s lifestyle,” and to equalize the parties’ lifestyles.

In Schuler v.Schuler (1981), the Supreme Judicial Court noted that a judge may also weigh a party’s ownership of “substantial assets”, and continued standard of living following a job loss, in determining is whether attribution of income proper. However, in Ulin v. Polansky (2013), the Appeals Court cautioned against an overreliance on assets alone, noting:

Although Schuler, supra, and Flaherty, supra, discuss personal assets and a party’s continued maintenance of a standard of living in attributing income to that party, neither this court nor the Supreme Judicial Court has affirmed an attribution of income made without a finding concerning the party’s reasonable efforts to secure employment. Moreover, the attribution in this case was specifically tied to an earning capacity in the wife’s vocation, not to income she received from her family or from personal assets.

Gallagher v. Gallagher: the Attribution Analysis in Action

A recent unpublished opinion of the Appeals Court, Gallagher v. Gallagher (2016), illustrates some of the principles at work in attribution cases. In Gallagher, a former husband appealed the denial of his request for a modification of an alimony award.  The former husband initially filed a complaint for modification due to his business closing.  Following a trial, the probate and family court judge lowered the husband’s payments from $800 per week to $750 per week. The husband appealed, seeking for a further reduction.

In his appeal, former husband argued that income should be attributed to the former wife, who was trained as a teacher and had previously worked as a teacher. Of particular note was that $30,000 per year had been attributed to the wife at the time of the parties’ original divorce, in 2006, when the alimony order was first made. In the subsequent modification, the judge declined to attribute any income to the wife, who had remained unemployed throughout the trial, and who testified credibly that alimony had been her sole source of income since the divorce.

In its analysis, the Appeals Court noted it less frequent that a court attributes income to the recipient of the support when modifying a prior judgment. (Although the same may not hold true in the original divorce or action setting child support.) Ultimately, the Appeals Court acknowledged the trial court judge’s broad discretion in determining attribution, and declined to reverse on husband’s behalf.

In Gallagher, even with former husband earning less – he dropped from earning $176,000 annually to earning $124,696 annually – his loss of income generated only a slight reduction in alimony. Unlike the initial divorce, the judge declined to attribute $30,000 per year in income to the former wife in the modification case. The case illustrates the gamble a party takes when relying on an attribution argument at trial.

Like many issues in the Probate and Family Court, attribution cases are rarely cut-and-dry. Given the numerous factors at work, as well as the judge’s very broad discretion, it is best to carefully analyze and weigh whether an attribution argument is worth pursuing in litigation.

About the Author: Nicole K. Levy is a Massachusetts divorce lawyer and 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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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 8th, 2016|Categories: Alimony, Child Support, Divorce, Family Law|Tags: , , |

State Senate Declines Vote on Alimony Reform and Child Custody Bills in 2016

Massachusetts Divorce lawyer Jason V. Owens recaps the defeat of “an act reforming alimony in Massachusetts” and the “Massachusetts Child-Centered Family Law” in the state senate.

Massachusetts divorce lawyer. Massachusetts custody lawyer.

Attorney Jason V. Owens

For much of 2016, this blog has followed the progress of “an act reforming alimony in Massachusetts” (also known as the Alimony Re-Reform Bill) and the “Massachusetts Child-Centered Family Law” – two family-law oriented bills that passed the Massachusetts House of Representatives in 2016. However, neither bill received a vote in the state senate before the close of the summer legislative session on July 31, 2016. A new legislative session begins on  January 1, 2017, but the fate of each bill is uncertain for now.

Although both bills passed the Massachusetts House of Representatives, it appears the bills died in the senate in different ways. The alimony bill was backed by vocal and committed supporters. The bill appeared destined for passage in the senate after passing in the House on a unanimous, 156-0 vote.  Our sources tell us that after passing the house, the alimony bill met stiff resistance in the senate from opponents of the original Alimony Reform Act, which passed in 2011.

Massachusetts state senate.

Neither the alimony nor custody bills received a vote in the state senate.

In contrast, support for the child custody bill appeared to evaporate after a series of amendments transformed the bill from one that would radically re-shape Massachusetts custody law by making shared physical custody presumptive to a far more modest final bill. The final amendments in the House were subject to a motion to reconsider by the bill’s backers; however, the motion was denied. Although the amended bill ultimately passed the House, it’s likely the bill’s backers had little enthusiasm for the final product.

In short, the alimony bill was backed by vocal supporters who fought for passage in the house, only to be defeated by opponents in the senate. In contrast, the custody bill never truly escaped the house, where amendments by house opponents deprived the bill’s original supporters of the core language in the original bill.

If we hear more about either bill’s prospects in 2017, we will be sure to pass on the news.

UPDATE (8/3/16): Alimony Reform Advocate Says Fight to Pass Alimony Bill will Continue

In an email sent late in the evening of August 2, 2016, Steve Hitner of Mass Alimony Reform indicated that advocates will continue fighting to pass in the bill in the 2017 legislative session, writing:

This past Sunday, July 31, 2016 was the last formal session of the Senate.

Unfortunately, H 4427 never made it out of the Senate Ways and Means Committee.

However, it is not too late, as there will be informal meetings until December 31, 2016. If we do this right, we can still get the job done.

There are many reasons why H4427 is still in W and M.:

1. Too many Bills and not enough time to act on all of them.

2. Opposition from others.

3. No Senate advocate with passion for the Bill.

4. Minimal media attention.

5. We did not educate enough Senators to the need for passage.

Hitner urged supporters to contact state senators to schedule in-person meetings to push for the bill’s passage next year.

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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Child Custody Bill Passes House, May not Receive Senate Vote in 2016

Massachusetts divorce lawyer Jason V. Owens reviews the latest amendments to the “child-centered family law”, which awaits a vote in the Massachusetts state senate.

Massachusetts divorce lawyer. Massachusetts custody lawyer.

Attorney Jason V. Owens

For months, we have followed the progress of the “Massachusetts Child-Centered Family Law“, a version of which was approved by the Massachusetts House on July 23, 2016. Originally, the bill was a vehicle for father’s rights groups pressing for presumptive shared physical custody in all Massachusetts divorce cases. Today, following numerous amendments, the bill has been fundamentally altered. While the bill would still re-write child custody laws in the state, the shared physical custody requirements found in the original bill have been largely stripped away, leaving only a list of “factors” for judges to consider when deciding custody cases.

When we last reviewed he “Massachusetts Child-Centered Family Law”, the House version of the bill was known as H.4107. With the state legislative session nearly over for 2016, the current version of the bill – which is now before the state senate – is H.4544. The newest amendments to the bill, made on July 23, 2016, include the following changes:

  • No more preference for shared custody. Eliminating language in Section 2(a) that stated, “[u]nless the parents agree or the court determines otherwise, a child shall reside one-third of the time or more with each parent …” The section now reads, “Time with each parent may but shall not necessarily be equal. The parenting plan shall be known as shared residential responsibility only if the child’s period of residing with and being under the care and responsibility of each parent amounts to one-third or more of the parenting time; provided, however, that nothing in this paragraph establishes a presumption that a child shall spend a minimum of one-third of the time or more with each parent.”
  • Expanded review of children’s wishes in custody decisions. Adding language to Section 5(D)(2), which originally stated that courts making custody decisions may take into account, “[t]he reasonable wishes of the child, if the child is of sufficient age, capacity, temperament and understanding.” The new bill adds to the section, “[w]hen considering the child’s wishes, the court may also give due consideration to factors that have unduly influenced the child’s preference.”
  • Removal of factor suggesting parent must “foster a positive relationship” between child and other parent. Section 5(D)(9), which deals with factors courts may consider in custody cases, was modified to remove this language: “The ability of a parent to foster a positive relationship and frequent and continuing physical, written, electronic, telephonic, and other contact between the child and the other parent; provided however, that the court may not consider this ability if one parent demonstrates that the other.”
    Massachusetts custody lawyer.

    The latest version of the “Massachusetts Child-Centered Family Law” expresses no preference for shared physical custody.

  • Greater emphasis on absentee parents. Section 5(D)(11) has been from, “whether either parent has deserted the child”, to “[w]hether there has been a lack of a meaningful relationship between a parent and the child, and the reasons for any estrangement from the child.”
  • Court’s authority to sanction non-compliant parents. Section F, which addressed violations of parenting orders, added new language, granting courts authority to order non-compliant parents to reimburse the other parent for “(a.) reasonable child care and related expenses; (b.) reasonable travel and related expenses; (c.) or lost wages.”

Taken together, the latest amendments continue the trend towards moderating the bill away from its original shared physical custody preference. However, as noted in our recent blog on the bill, the newest version still fails to expressly favor historic primary caregiver parent in custody decisions. The closest the bill comes to acknowledging the importance of historical caregivers is Section 5(D)(5), which provides that courts making custody decisions shall consider:

The willingness and ability of each parent to fulfill caregiving functions, as well as the history of caregiving functions provided by each parent. Caregiving functions are tasks that involve direct interaction with the child or arranging and supervising the interaction and care provided by others.

This brief mention still strikes as giving short-shrift to the importance of historical caregivers in custody decisions, where Massachusetts case law has regularly treated the stability and continuity between children and primary caregivers as the most important factor in custody decisions, as laid out by the Supreme Judicial Court in Custody of Kali (2003):

[I]t is in the “best interests of the child” to preserve the current placement with a parent, if it is a satisfactory one, and that stability and continuity with the child’s primary caregiver is itself an important factor in a child’s successful upbringing. … [The law] cautions against rearranging a child’s living arrangements in an attempt to achieve some optimum from all the available permutations and combinations of custody and visitation, when it is generally wiser and safer not to meddle in arrangements that are already serving the child’s needs. If the parenting arrangement in which a child has lived is satisfactory and is reasonably capable of preservation, it is ordinarily in the child’s best interests to maintain that arrangement, and contrary to the child’s best interest to disrupt it. Stability is itself of enormous benefit to a child, and any unnecessary tampering with the status quo simply increases the risk of harm to the child. …. There may be serious shortcomings in the primary caretaker’s parenting to date, or evidence that a previously exemplary caretaker will not be able to continue providing adequate care. Or, even assuming that the primary caretaker has been providing good care, and all indications are that that parent would continue to do so, it is possible that the other parent may offer some extraordinary advantage to the child that makes the disruption in the child’s life worth the risk. In most cases, however, if the child has been living with one parent for some time, the child’s needs are being adequately met under that parent’s care, and that parent is capable of continuing to care for the child, it is not in the child’s best interests to disrupt that successful arrangement. Rather, it is in the child’s best interests to preserve it. Belief that the other parent might be a little better in some areas ought not suffice to disrupt a child’s satisfactory home life with the caretaker parent. [Citations omitted.]

The latest version of the “Massachusetts Child-Centered Family Law” would provide helpful guidance to Probate and Family Court judges tasked with child custody decisions, if passed. However, even today, the bill appears to understate the importance of the bond between a child and his or her primary caregiver in custody cases.

NOTE: As of 4:02 PM on July 29, 2016, the latest version of the bill had not received a vote in the state senate. The 2016 legislative sessions ends officially on July 31, 2016. Lawmakers will return to Beacon Hill to start the 2017 session in February.

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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Time Nearly Out for Massachusetts Senate to Pass Alimony Re-Reform Bill in 2016

Massachusetts divorce lawyer Jason V. Owens checks the pulse of the Massachusetts Alimony Re-Reform Bill, which is mired in the state senate as the 2016 legislative session nears its close.

Massachusetts alimony lawyer. Massachusetts alimony attorney.

Attorney Jason V. Owens

With the 2016 Massachusetts legislative session winding down, advocates fear an alimony “re-reform” bill that unanimously passed the House last month will die in the state senate after stalling in the Ways and Means Committee.  The bill, which passed the house in a unanimous 156-0 vote last month, has not received a vote in the state senate in more than a month. In an email sent yesterday, Stephen K. Hitner, President of Massachusetts Alimony Reform, indicated that he believed the bill would be “dead” if the senate failed to vote before the state’s 2016 legislative session ends on July 31, 2016. Hitner is imploring Massachusetts voters to contact state senators in their districts to urge a vote on the bill. According to Hitner, the bill has faced opposition in the senate from the same groups that opposed the original Alimony Reform Act of 2011, writing:

I have been advised by credible people that there are some Lawyers and some people representing the legal Bars who
are against the passage of H4427. These people honestly believe that the SJC ruled correctly. They have clients who they represented and they do not want to have to tell them that they were wrong.

These are the same people who tried to prevent the passage of the Alimony Reform Act of 2011.

The only way to fight this is with your voices, your horror stories, and most all your SENATOR’S immediate ACTION.

The current version of the bill, H4427, has been mired for more than a month in the Senate Ways and Means Committee, which is chaired by Karen Spilka (D-Ashland). Hitner is specifically reaching out to activists who share a personal relationship with members of the Ways and Means Committee, writing to followers on Wednesday:

We need people with personal relationships with Senators on the Senate Ways and Means Committee to push for their action.The Senate Session is ending this Sunday July 31, 2016.

If you know a Senator on Personal Level, I need you to contact me immediately.

Unless a Senator pushes hard for the Ways and Means Committee to approve and send H 4427 for a Senate Vote on Saturday or Sunday, the Bill is Dead!

Unless the Ways and Means Committee approves and sends the Alimony Re-Reform Bill to the Senate for a Vote, thousands of alimony payors can never hope to retire.

Unless the Ways and Means Committee approves and sends the Alimony Re-Reform Bill to the Senate for a Vote, thousands of alimony payors will continue to support an ex-spouses significant other!

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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Proving Cohabitation Under the Massachusetts Alimony Reform Act

Massachusetts divorce lawyer Josey Lyne Payne discusses the challenges of proving the cohabitation of an alimony recipient under the Massachusetts Alimony Reform Act.

Massachusetts alimony lawyer

Attorney Josey Lyne Payne

Under the Massachusetts Alimony Reform Act, one statutory factor for suspending, reducing or terminating a general term alimony award is cohabitation. Under the Act, alimony is defined as “the payment of support from a spouse, who has the ability to pay, to a spouse in need of support for a reasonable length of time, under a court order.” Further, under Ch. 208, s. 49(d), the Act makes clear that “[g]eneral term alimony shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payor shows that the recipient spouse has maintained a common household, as defined in this subsection, with another person for a continuous period of at least 3 months.” In short, if the spouse paying alimony can prove that the receiving spouse is cohabitating with a new romantic partner, a probate and family court is required to suspend, reduce or terminate alimony.

What’s less clear under the Act is which party has the burden of proving (or disproving) that the recipient spouse is cohabitating. Here’s the answer: in terms of cohabitation, spouse who is paying alimony has the burden of proving that the receiving spouse is cohabitating with a new partner.

A Question of Proof: is the Receiving Spouse Sharing a “Common Household” with a New Romantic Partner?

The key language in the Act relative to cohabitation is the need for a paying spouse to prove that a “common household” exists between the spouse receiving alimony and his or her new romantic partner. Luckily, common household is defined within the statute: “Persons are deemed to maintain a common household when they share a primary residence together with or without others.” It may be helpful to understand the Act’s definition of “common household” by breaking it down into its component parts:

  • primary
  • residence
  • together

The statute further provides that “[i]n determining whether the recipient is maintaining a common household, the court may [but not must] consider any of the following factors:

  • oral or written statements or representations made to third parties regarding the relationship of the persons;
  • the economic interdependence of the couple or economic dependence of 1 person on the other;
  • the persons engaging in conduct and collaborative roles in furtherance of their life together;
  • the benefit in the life of either or both of the persons from their relationship;
  • the community reputation of the persons as a couple; or
  • other relevant and material factors.

Obtaining Evidence of Cohabitation: What Kind of Proof  Works in Court?

The question then remains: how does a paying spouse develop evidence proving that a former spouse is cohabitating? There are a variety of methods for procuring evidence of cohabitation, including the following:

  • Social media is often a ripe resource for procuring written statements and representations regarding the relationship of the person receiving alimony and their new cohabitating partner – think Facebook relationship status updates.
  • Photographs, either taken by the payor, published on social media, or the employing of a private investigator, are often excellent examples of suitable evidence designed to demonstrate conduct and collaborative roles as well as securing a community reputation as a couple.
  • A payor can use discovery to subpoena bank records, residential leases, depositions of landlords, etc. to demonstrate that the cohabitating couple share finances and liabilities which could support their economic dependence and/or interdependence.
  • Affidavits by a private investigator or other witnesses who have directly observed the couple may be used to interpret or tie together photographic or documentary evidence that suggests the couple primarily resides together.

What Evidence is Essential? Proof the Couple Actually Lives Together

The Act does not define which factors the probate judge must consider in determining and ultimately finding whether or not a recipient is, in fact, cohabitating. However, the fundamental feature of cohabitation is two people living together. Anyone who has ever been in a serious dating relationship knows that the decision to live together is an extremely serious life decision. Indeed, many people date for years without making the leap to cohabitation. The payor’s main burden is to prove that the recipient and his or her new romantic partner are actually living together.

Massachusetts alimony lawyer.

The Alimony Reform Act provides detailed framework for the amount, duration and modification of alimony in Massachusetts.

The most frequent defense raised by alimony recipients against cohabitation arguments is that the two partners maintain two separate homes or households in their individual names. This argument is frequently strengthened by documentary evidence such as leases, utility bills and government ID’s all showing that the former spouse and his or her partner maintain separate residences. Proof of cohabitation will be further muddied if the couple spends time at each partner’s official residence. Ultimately, a recipient spouse who can prove that he or she and the partner maintain separate homes can often prevail against a claim of cohabitation.

Indeed, alimony paying spouses must be mindful of the “grey area” between a serious dating relationship and cohabitation. If each romantic partner maintains his or her individual residence, the mere fact that each partner contributes financially to shared activities such as dates, meals and vacations may be insufficient to prove cohabitation. We no longer live in the 1950’s, when fixed gender roles dictated how men and women in a dating relationship spent their money and time. Dating relationships take many forms these days, and dating is not the same as cohabitation. That said, if a couple has been together for years, and one partner consistently sleeps at the home of the other – and appears to treat that partner’s residence as his or her primary home – then it may be possible to prove cohabitation, even if the partners maintain separate residences “on paper”.

What Evidence has the Biggest Impact on Alimony? Proof of Shared Income, Expenses and Assets

It is important to recognize that although Ch. 208, s. 49(d) calls for the mandatory suspension, reduction or termination of alimony when cohabitation is proven, the statute does not mandate the extent to which a court must actually eliminate alimony. Indeed, a judge who decreases a $500.00 per week alimony order to $475.00 per week after seeing proof of cohabitation has satisfied the technical requirements of the statute. In short, the payor has the burden to prove that cohabitation is occurring, but only the judge decides how much weight he or she will give to the evidence when suspending, reducing or terminating alimony.

Once cohabitation has been established, the evidence that is most likely to result in a substantial reduction (or elimination) of alimony centers on financial support that the recipient spouse receives from his or her romantic partner. There are two methods of proving financial support. First, bank records and other documents may demonstrate that the recipient spouse is receiving direct financial support from the new partner in the form of cash payments or the direct payment of the recipient’s expenses. The second method involves evidence that demonstrates that the recipient spouse’s lifestyle and/or station have markedly improved as a result of the partner’s financial strength. For example, perhaps the recipient spouse spends most of his or her time at the partner’s large home, driving the partner’s fancy car, and dining out at fancy restaurants with the partner. Even if the recipient and partner maintain separate bank accounts, the alimony payor may persuade the judge that the recipient’s lifestyle has dramatically changed as a result of the new partner’s financial means.

If documentary evidence establishes that the recipient and his or her new partner share bank accounts and household expenses, a payor can argue that such an economic partnership eliminates the need for alimony. Similarly, the paying spouse may argue that it is unfair for his or her alimony payments to be used to support the new partner, with whom the alimony paying spouse has no relationship.

What About Financial Support from a Romantic Partner when there is no Cohabitation?

If a paying spouse cannot prove cohabitation – or if proof of cohabitation is borderline – the paying spouse may still be able to obtain a reduction in alimony by proving that the former spouse’s new romantic partner provides substantial economic support to the recipient. The Act provides that alimony should be limited by the economic “need” of the recipient spouse, separate and apart from the cohabitation provision. If a new boyfriend or girlfriend is providing an alimony recipient with significant financial support, the paying spouse can argue that a substantial change in circumstances has occurred warranting a modification of alimony – regardless of whether cohabitation is occurring. Paying spouses should be mindful that judges are more likely to consider this argument if the recipient spouse is in a long-term relationship with a wealthier partner, whose financial support extends over many months or years. The mere fact that a recipient spouse has been dating a wealthy suitor for a few months probably is not grounds for a reduction in alimony, since such relationships often prove temporary.

All the way back in 1986, the Supreme Judicial Court held in Gottsegen v.Gottsegen (1986) that if, “as a result of cohabitation, the recipient spouse’s economic circumstances have materially changed, then the court may alter or eliminate alimony. However, a judge may not modify a judgment solely on the basis of a finding of cohabitation.” The same is true if a former spouse’s economic circumstances have materially changed as a result of a romantic relationship that does not involve cohabitation. The Appeals Court, in its recent unpublished opinion, Brumleve v. Ouellette (2015), performed the Gottsegen analysis as follows:

There is no indication that the wife’s earning capacity[5] or expenses[6] had materially changed between 2012 and 2014. In both 2012 and 2014, the wife reported a weekly contribution from household members of $100. To the extent that the judge chose to attribute a greater weekly contribution of $524 from the wife’s household members[7], that additional amount was offset by the wife’s loss of $500 per week in income following the termination of child support in 2012.[8] Additionally, the husband’s income had not “significantly changed,” and his expenses had actually decreased since 2012.[9] It is therefore apparent that the reduction in alimony was not based upon a material change in the parties’ financial circumstances.

Although the court did not order an alimony reduction in Brumleve, the factors listed in the opinion provide helpful guidance for the areas where courts seek proof.

What if Cohabitation Ends? Alimony can Re-Commence

The Act provides that “[a]n alimony obligation suspended, reduced or terminated [under a finding of cohabitation] may be reinstated upon termination of the recipient’s common household relationship; but, if reinstated, it shall not extend beyond the termination date of the original order.” What this means is that when a pair of cohabitating fish call it quits, and the recipient goes back to the sea, they payor may very well find him or herself back on the alimony hook! Where the Act specifically dictates the duration of alimony based on the length of the parties’ marriage, a former spouse who stops cohabitating during the period when he or she is still eligible for alimony may seek a new alimony order. Where the primary purpose of the Act was to reduce the alimony burden of paying spouses in Massachusetts, this small benefit for recipients only seems fair.

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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If you need the assistance of a family law attorney, please call us at (781) 741-5000, or send us an email, to schedule a free 1-hour consultation.

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 |July 20th, 2016|Categories: Alimony, Divorce, Family Law|Tags: , , |

Moving (with Children) After Divorce in Massachusetts

Massachusetts divorce lawyer Nicole K. Levy uses a recent Appeals Court decision to illustrate the complications faced by former spouses who seek to move with their children following a divorce.

Massachusetts child support lawyer

Attorney Nicole K. Levy

Like many states, Massachusetts has seen a significant push towards greater shared physical custody arrangements for divorced parents in recent years as a result of the father’s rights movement. An increase in shared physical custody arrangements carries some drawbacks, however. Among these drawbacks is reduced flexibility for parents seeking to move, where the “back and forth” nature of a shared physical custody schedule requires parents to live in relatively close proximity to each other.

Parties who agree to share physical custody must consider how the parenting schedule could affect a future move by either parent. The results have been an uptick in divorce agreements that restrict the number of miles a party may move following a divorce. What happens when a party violates a provision of their divorce agreement limiting his or her ability to relocate beyond a certain range as part of a parenting plan? The Appeals Court recently addressed this issue in Zahoruiko v. Regal (2016). The Court’s unpublished opinion provides a useful jumping off point for a discussion about the complications faced by former spouses who seek to move following a divorce.

We have written frequently about the challenges faced by parents seeking to remove children from the Commonwealth through a permanent relocation to another state. When an out-of-state move is challenged by the other parent, such “removal cases” are some of the most challenging, expensive and hard-to-predict family law cases that attorneys face. When parents share physical custody, however, even relatively routine in-state moves can turn complicated, where one parent’s move can ultimately impact parenting time, school choices, transportation, and even child support.

The Zahoruiko Divorce: Agreement: Featuring a 30-mile Restriction on Either Party’s Right to Move

In Zahoruiko, the parties were divorced in 2010 pursuant to a separation agreement that specifically contemplated what would happen if one party chose to move. Under the agreement, the parties shared legal and physical custody of the children. The agreement included a requirement that “that the parties were to reside within thirty miles of each other within central Massachusetts”. The agreement also included a “parenting schedule whereby [the parties] would essentially alternate primary responsibility for the children on weekdays and weekends.”

Massachusetts removal lawyer. Massachusetts relocation attorney.

When one parent relocates after a divorce, it can be hard to keep a shared physical custody schedule intact.

Despite the agreement’s relocation restrictions, the father elected to move more than 30 miles away from the mother – to Connecticut. Indeed, the father moved to Connecticut without the mother’s notice or consent, despite sharing physical custody. Following the move, the mother filed a complaint for modification that “requested that the father’s parenting time be modified to reflect his change in residence and the best interests of the children.”

In its recitation of facts, the Appeals Court noted that:

[F]rom February, 2010, until June, 2014, the parties lived in Grafton, Massachusetts, less than two miles apart. In June, 2014, the father moved to Tolland, Connecticut with his fiancée, over forty-five road miles from the mother’s residence in Grafton. Despite the terms of the parties’ agreement, the father refused to discuss a revised parenting plan in contemplation of the move.

Following a trial, the probate and family court judge decided to reduce the father’s parenting time as a result of the move:

The judge noted that the children resided in Grafton, their school enrollment was in Grafton, their friends were in Grafton, and their extracurricular activities were in Grafton. The judge found that it was not in the children’s best interest to commute from Connecticut to Massachusetts under the prior shared parenting schedule. In the judge’s view, the road miles required too much unnecessary time in an automobile on a school night and the father, not the children, should make the commute.

The judge modified the parenting plan to provide the father with “parenting time on alternating weekends from Friday after school to Monday morning at school, and on ‘the Thursday before and the Tuesday after [the] mother’s weekend from 4 P.M. to 7 P.M.’ In addition, the father was to have four nonconsecutive weeks of summer vacation with the children, and parenting time on certain holidays and other vacation days.” The Appeals Court affirmed the probate and family court judge’s decision, confirming the soundness of the judge’s rationale.

Reducing the Moving Party’s Parenting Time: When Parties Relocate Without a Court’s Input

In its review of the lower court decision, the Appeals Court focused on numerous factors, including:

  • That the divorce agreement provided an express provision limiting in-state relocations to a 30-mile radius, which the father clearly violated.
  • That the father failed to consult with the mother prior to moving more than 45 miles away.
  • That the father refused to discuss or consider a revised parenting plan with mother following the move.

The Court ultimately found that the judge’s decision centered on the children, rather than the father’s conduct. (The decision did address the father’s non-compliance with the agreement’s restriction on relocation, but took pains to confirm that the change in custody was based on the children’s best interest, and not a form of punishment against father for his conduct.) Reviewing the facts of the case, the Appeals Court observed the following:  “

The judge found that the children’s lives centered around the town of Grafton, where their mother resided, and that it was not in the best interests of the children to commute from Connecticut to Massachusetts under the prior shared parenting schedule.”

The Court was particularly concerned that due to the father’s relocation, the “parties’ daughter would be required to get up almost two and one-half hours before the commencement of her school day and, assuming no delays on the road, would spend roughly one and one-half hours in the father’s car before school.”

Interestingly, the case was not decided based on the Massachusetts removal statute, Ch. 208, s. 30, which provides:

A minor child of divorced parents who is a native of or has resided five years within this commonwealth and over whose custody and maintenance a probate court has jurisdiction shall not, if of suitable age to signify his consent, be removed out of this commonwealth without such consent, or, if under that age, without the consent of both parents, unless the court upon cause shown otherwise orders.

In a footnote, the Appeals Court noted that “there is no indication that either the parties or the judge proceeded at trial under that statute”. There are a couple of reasons that neither the probate and family court judge nor the parties relied on Ch. 208, s. 30 at their trial. First, the case law surrounding Ch. 208, s. 30 focuses almost exclusively on cases in which the primary custodial parent seeks to relocate out of state.

In the end, the reason the lower court did not apply Ch. 208, s. 30 may come down to the simple fact that the father in Zahoruiko did not “remove” the children from Massachusetts, where the mother retained 50% custody of the children, and the children continued to attend school in Grafton. (Indeed, under Massachusetts law, a citizen is domiciled in whatever town that he or she sleeps at least 50% of the time, meaning the children arguably continued to “reside” in Grafton, despite the father’s move.)

Different Relocation Standards: Sole Physical Custody vs. Shared Physical Custody

In the removal context, it is important to recognize that Massachusetts courts apply different standards when evaluating a proposed move by a parent with sole physical custody over his or her children versus a parent who shares physical custody. As the Appeals Court recently observed in English v. English (2015):

If the party seeking removal is the sole physical custodian of the child[], then the judge must consider the request under a two-prong test set forth in Yannas. The judge must first consider whether there is a good reason for the move, a real advantage. As explained in Yannas, the `real advantage’ test is grounded on the realization that after a divorce a child’s subsequent relationship with both parents can never be the same as before the divorce … [and] that the child’s quality of life and style of life are provided by the custodial parent. … Although the best interests of the children always remain the paramount concern, [b]ecause the best interests of a child are so interwoven with the well-being of the custodial parent, the determination of the child’s best interest requires that the interests of the custodial parent be taken in account. (Citations omitted) (Emphasis added.)

The English opinion further explains that if the parties share physical custody, the Appeals Court noted that a different test applies:

If the party seeking removal shares physical custody with the other parent, then the best interest calculus pertaining to removal is appreciably different from those situations that involve sole physical custody. … Where physical custody is shared, a judge’s willingness to elevate one parent’s interest in relocating freely with the children is often diminished. No longer is the fortune of simply one custodial parent so tightly interwoven with that of the child; both parents have equal rights and responsibilities with respect to the children. The importance to the children of one parent’s advantage in relocating outside the Commonwealth is greatly reduced. (Citations omitted.) (Emphasis added.)

As noted in our recent removal blogs, the recent trend in Massachusetts removal cases has been to devalue the “real advantage” portion of the Yannas test. As a result, courts seem increasingly less inclined to grant requests by custodial parents to relocate children out of state. (However, a recent Appeals Court case, Rosenwasser v. Rosenwasser, seemed to buck this trend by re-emphasizing the importance of the “real advantage” test).

For all its faults, the “real advantage” test gives judges, lawyers and parties a framework in which to understand and predict how a probate court judge might rule on a proposed move. Conversely, the “best interest of the child” standard that applies to moves requested by parents who share physical custody is so vague as to be nearly meaningless.

(Despite the ambiguity of the “best interests” test, there are three important factors that often impact relocation cases decided under the standard. First, a parent who presents facts proving that he or she deserves sole physical custody for reasons entirely separate from the move is more likely to prevail in his or her relocation case. Second, the importance of the move itself may prove critical in such cases. If the parent has extremely compelling reasons for his or her move – such as an involuntary job transfer for the parent providing most of the financial support for the children – a court is less likely to prevent a move by “punishing” the moving parent with reduced parenting time. Third, there is the impact of the move on the overall schedule. Generally speaking, probate and family court judges try to avoid radically modifying the parenting schedule when both parties are sincere, committed and loving parents. Judges will often reward a moving parent who demonstrates an openness to tweaking the schedule to maximize the convenience for the children and other parent.)

Good Faith Efforts: Courts Tend to Favor Parents who try to Limit the Impact of a Move on the Children and Other Party

The Zahoruiko decision may have been different if the father had simply asked the court to modify the parenting schedule to allow his move by filing a more traditional complaint for modification. Had the father persuaded the court that he could offer the children a better life in Connecticut, perhaps the judge would have awarded primary custody to him. Instead, the father moved unilaterally, then insisted that the schedule should continue as if the move never occurred. Such inflexibility probably harmed the father’s case.

Similarly, if the father had engaged in good faith negotiations with the mother to tweak the schedule, to minimize the impact of the move, such efforts would have probably helped his cause with the judge. Similarly, if the father had proposed such “tweaks” to the probate court judge, the father would have probably exerted more control over the final schedule ordered by the judge.

Post-Divorce Moves: A Complex Array of Challenges and Potential Outcomes

In the end, Zahoruiko reflects the many complications that can arise out of a parent’s desire to move, in or out of state, and how these issues may be complicated by designations of shared vs. sole custody, and the procedural choices made by the moving parent. There are many factors to consider when considering the range of outcomes in relocation cases.

At one end of the spectrum, there may be a party who wishes to move to a neighboring state, perhaps Rhode Island. A move to Rhode Island may be minor in terms of distance. (Moving to Providence from Attleboro is far less drastic than moving to Newburyport, for example).  However, if the moving party is the custodial parent, it would trigger a “removal case” that requires a court’s permission, even if the move was five miles from the previous residence. (Ironically, Zahoruiko suggests that a similar parent with shared physical custody could move to Rhode Island without needing a court’s permission at all.)

At the other end of the spectrum, a party may wish to move from Hanover to Amherst.  Simply being “in state” does not automatically mean the move cannot be challenged by the non-moving party. Such a drastic change in location may affect the transportation time, the children’s schooling, their sports, and the parenting schedule (which may then affect child support). This may trigger a removal analysis, despite the moving party not crossing state borders. Just as likely, such a move may require some practical adjustments to the parenting schedule that a court must then approve.

All of this tells us that it is important to consider the implications of a move when parties are negotiating a divorce agreement. Whether a specific provision limiting the range of a potential move is appropriate varies from case to case, parties and their attorneys should explore the possibility of a move before finalizing an agreement.

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

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By |July 18th, 2016|Categories: Child Custody, Divorce, Family Law|Tags: , , , , |