Massachusetts Divorce Law Monitor : Boston, MA Divorce & Family Law Lawyer & Attorney : Nancy Van Tine : Burns & Levinson Law Firm

Hi there,

I should have put up a post on Martin Luther King Day, but I didn't.  Then this morning Tax Girl had a truly wonderful post about being a lawyer, and Dr. King.  I am simply linking to this because it epitomizes for me (and I am sure for many of us) what being a lawyer is about, both good and bad.

Best,

Nancy

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Hi there,

Today the Massachusetts Appeals Court (the second highest court in the state) overturned a divorce judgment in the Caveney case dealing with valuation of interests in closely held businesses.  In the process they clarified the standard to be used for divorce purposes in valuations.

Before the Bernier case in 2007, valuations of closely held businesses applied "Fair Market Value," which is what a willing buyer would pay a willing seller.  The experts would then apply discounts which reduced the value, first for lack of marketability.  If the business interest was a minority interest, they would apply a discount for lack of control.  These two discounts can and did make an enormous difference in the values applied.  Post Bernier, most experts use (or at least discuss) using "Fair Value," which generally means no discounts for marketability or lack of control.

In Bernier, the divorcing couple owned supermarkets on Martha's Vineyard.  These markets were not for sale.  The judge -- a very capable judge (disclaimer here, she once was a partner of mine) -- not unreasonably applied discounts.  The wife appealed and the Appeals Court held that the discounts should not be applied.  The Bernier decision had been read more narrowly; this decision eliminates that argument.  This case, and in circumstances where a sale of the asset is not contemplated, makes it clear that Fair Value is the standard to be applied.

Best,

Nancy

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Hi there,

I have been struggling to learn how to tweet (I can't tell you how I shudder to use that word; my English teacher mother is rolling in her grave).  Despite my whining I am truly addicted to how much information you can get on Twitter, and keep getting on an ongoing basis. 

From the hundreds of tweets out there everyday relating to divorce, I have selected below my Twelve Tweets of Twistmas....

1. Divorce Research 2011: Top 11 Findings Of The Year (via @huffingtonpost)
2. Divorce After 50: Why It's More Complex (via @Dad'sDivorce)
3. When Your Ex Goes Overboard at Christmas (via @huffingtonpost)   
4. Hulk Hogan Files Defamation Suit Against Ex Linda Bollea Over Autobiography Claims (via @foxnews)
5. Three Holiday Divorce Mistakes to Avoid (via @Dad'sDivorce)

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Hi there,

Divorce is even tougher if you have special needs children.  They need more stability and the divorce agreement should reflect their needs.  My very skilled colleague, Elizabeth Crowley, has written a great post on special needs trusts, which are as necessary in a divorced family as in an intact one...

How many of you have in your immediate or extended family, or know someone who has in their family, a disabled child?  In my extended family alone, there are three children who are affected in varying degrees by Autism Spectrum Disorder.  I know firsthand the extraordinary efforts their parents take to obtain services, advocate for their children, and ensure that their children's current and future needs are taken care of. 

One of the greatest concerns parents and caretakers have is planning for the disabled individual’s future needs after the parents' deaths.  Will the child be able to live on her own?  Will she be able to hold down a job and earn a living?  Or, in the most severe of cases, might she need around-the-clock care and significant financial support during her entire lifetime?  And, beyond that, how will it be paid for?

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Hi there,

I spent some time waiting in court today for my case to be called, and realized while listening to the arguments ahead of me that this is the happy time of year when divorce lawyers are negotiating the minefield of holiday parenting time.  This is tough for all concerned.  Hanukkah begins on December 20th this year and Christmas is, of course, the 25th. 

If you don't have the holiday parenting time arranged by Thanksgiving and your ex is giving you trouble, then many of you will unfortunately end up in court in the first few days of December fighting over parenting time and access. 

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Hi there!

Have a Happy Thanksgiving all, and try not to get trampled on Black Friday!

Best,

Nancy

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Hi there,

We don't live in a vacuum and what is happening in the global economy affects all of us (think of your 401K's roller coaster ride this year).  If you are divorcing, you, your counsel, and hopefully your financial advisor, should be thinking about what nasty surprises may be in store as a result of the economic decisions you are making now. 

You should try not to put all of your eggs in one basket (I have been dying to use that mega cliché). It used to be that it was considered economically OK to keep the marital home in exchange for your spouse getting pension assets. Not so much anymore.  Marcelle Sussman Fischler writes in Forbes that the house is a "hot potato." There are few teeth left to the old argument that the house should be transferred in exchange for another asset when the equity in the house is negative.  Some folks are opting to hold on as joint homeowners for a few years in the hope that the market rebounds; this makes a lot of sense if you have kids in a school system, but it does tie you together.  It means you and your soon-to-be-ex will need to discuss and decide how to share repair expenses, payment of principal on the mortgage, sharing of tax deductions and how you will handle the practical details of selling it.

I am seeing appraisals of real estate come in much higher than what the parties think the market value really is.  In many cases it makes sense to sell and divide the equity.  If you choose to keep an asset at what you believe is an overvalued price, you are actually buying that asset for too much money.

Retirement accounts, while very volatile right now, are easier to divide in a crazy market as they are usually divided across all stock positions so both of you will gain or lose in similar fashion.  I recently wrote about Massachusetts' new Alimony Reform Act, which makes clear that support ends at the payor's retirement age.  This also makes the decision to keep the house while your spouse keeps the retirement accounts very problematic unless you are young and expect to have time to earn a decent retirement yourself.

Many people have vacation homes and these are also a problem, as the second home market has had as deep, if not deeper, decline than for first homes.  Second homes are a luxury that fewer people can afford, so fewer buyers are out there and prices are lower.  More grim reality: Often the vacation home is something neither spouse wants or can afford.  For divorcing folks, losses in the market will translate into realized losses as well.

Of course if you have assets you want to keep, like a business, that are depressed as a result of market conditions, then this is a good time to get divorced.

The current economy is nasty and that means you should get a financial advisor as well as a lawyer.  For many of you, your future will be determined by the asset choices you make in your divorce.

Best,

Nancy

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Hi there,

It's coming up on Halloween and the pet stores are selling pet costumes...

I have two big dogs and one very tough cat, and while I don't think I'm going to be buying them costumes any time soon, I do understand the urge.  We think of and feel about our pets the way we do our children.  If you don't have kids, your pets fill that slot.  I'm a grandmother and I refer to the dogs as "my boys."

Any person, pet or child (am I anthropomorphizing or what here?) who is loved and who is in the middle of a divorce can become the subject (object?) of acrimony.  We have had cases here at Burns & Levinson that dealt with custody of dogs, cats and once, memorably, a horse.  I have negotiated, admittedly as part of a multimillion dollar divorce, an extremely detailed visiting plan for a dog.  There isn't any case law in Massachusetts that treats animals as anything other than property, but that doesn't stop pet owners from feeling otherwise.

Divorce is not the only time we think of pets.  For example, Leona Helmsley's $12 million bequest to her Maltese triggered a lot of discussion.  Possibly as a response, Massachusetts has created a new pet trust law.  My able partner, Cliff Cohen, has written an interesting piece on pet trusts.  I would not be surprised to be negotiating one soon.

Have a safe and happy Halloween!

Best,

Nancy

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Hi there,

It's been a while since I cleaned out the collection of random articles I've saved for the blog, and since October is closet cleaning time, here goes.

The statistics about divorce in this Wall Street Journal piece were somewhat astonishing.   I was also surprised and encouraged to read that second marriages stand just as good a chance of success as first marriages.  I had previously thought that the statistics about the occurrence of divorce were much higher.  Massachusetts has one of the lowest divorce rates in the nation, I wonder what we are doing right?

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Hi there,

Among the many things that astonished me as I began practicing divorce law, were the stupendous number of people who openly and flagrantly cheat on their taxes and, apparently, never get caught.

First, there are massive numbers of folks who just don't report all of their income.  I think this seems to hold true for anyone in a cash business.  Think mom and pop (or larger) stores, gas stations, car washes, landscaping businesses, etc etc.   

Next, there are also those folks who take imaginary deductions (as opposed to imaginative deductions).  These deductions can be amazing in their scope.  Travel expenses for trips that didn't occur, costs of goods sold that hadn't been purchased, all phantom deductions.

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Hi there,

Well after all the angst and political pressure the Alimony Reform Bill has been signed and is now law, the effective date is March 1.  Francine Gardikas, one of my talented colleagues and a member of the Boston Bar Association's family law group, has written a clear explanation of what the law does.

Best,

Nancy

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Hi there,

I spent all day yesterday in a very overcrowded Probate and Family Court (since all I do is divorce the only courts I go to are in the Probate and Family court system).  Massachusetts, like much of the rest of the nation, is in a budgetary crisis.  I realize this is true too of almost all divorcing couples.  The hard choices that divorcing folks have to make on a daily basis are now being made by government, and in an ironic twist, these hard governmental choices are also impacting the clients of the Probate and Family Court most deeply. 

Divorcing couples need  to cut expenses, as their income stream is now covering two households.  Less/no vacations, fewer clothes, or even an inability to pay the mortgage and maintain insurance are the choices divorcing couples have to make on a daily basis.

The state is making similarly difficult choices, and in one area I think very bad ones.  The court budget has been cut drastically, and as a result, the Court System has a $32 million dollar shortfall from it's requested budget.

Already, there have been over 1,000 employees either laid off or unreplaced in the court system, which was never overstaffed in the first place.  Courthouses are being closed and now the hours of access are being changed.  As of yesterday, September 19th, the counter clerks will only handle mental health emergencies and restraining orders after 3 PM, which will enable understaffed courts to catch up on undone clerical work.  This is necessary, so I actually think changing the hours is a good thing.

What this does mean though, is that access to an essential service is going to be even more severely limited.  Orders for temporary support, parenting time, and custody will be delayed.  Folks with money may well opt out of the Court System and hire retired judges to handle their cases.  This is already happening far more frequently than it used to, and as a result, there can be a very different type of justice for the wealthy.

Waiting to be heard on a day in Court is already taking longer, due in part to the increased load of cases being handled by fewer judges.  Consequently, litigants with lawyers are having to pay their attorneys more to simply sit and wait, and can amount to serious money for folks who are already in financial crisis.  The Pretrial Orders in most cases, require lawyers and parties to be there by 8:30am, and they may well have to wait until 12:30pm to be called.  Assuming an attorney was charging a modest $250 an hour, amounts to $1,000 of waiting - wasted time. 

The only solution right now seems to be to call or email your local legislators and ask them to reinstall the funds cut from the Court's budget.

Best,

Nancy

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Hi there,

I just got a call from the nice folks at Chronicle and they are re-airing the piece I was in about Cheating tomorrow night at 7:30pm on WCVB-Channel 5 Boston.  It really is very interesting, I actually learned that there are people who make a living trying to seduce their clients' spouses! Who knew?

Best,

Nancy

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Hi there,

I have been thinking about a post I read recently in the Ohio Family Law Blog (one of my favorites) about the possibility of parents who are not in the court system already, possibly having their children taken away as a result of childhood obesity.  Morbid obesity in children is clearly a health problem that needs to be addressed, although I am not so sure that a parent who punishes an out of control child by having them swallow hot sauce rises to a criminal child abuse level.  How many of you had your mouths washed out with soap, just askin?

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