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

Hi there,

Today the Supreme Judicial Court rendered its decision in the case which has set the standard for marital agreements in Massachusetts.  I was counsel for the wife in the appeal with my partners, Susan Stenger and Robin Lynch Nardone. We did not try the underlying case.

The judgment is very bittersweet for us because the court adopted the standard that we proposed for marital agreements then went on to find that at the trial our client hadn't met that standard.

Marital agreements are agreements between spouses that are neither divorce agreements nor prenuptial agreements. I very strongly believe that the opportunity for coercion is high in these circumstances (Honey sign this agreement or I will leave you) and we argued first that these agreements should not be enforced, but if the court was inclined to allow them there should be a different standard for their enforcement than is used for prenuptial agreements.

The SJC agreed; Marital agreements are now enforceable in Massachusetts, BUT

They must be scrutinized by the judge to determine at a minimum whether:

        (1) each party has had an opportunity to obtain separate legal counsel of each party's own choosing;
        (2) there was fraud or coercion in obtaining the agreement;
        (3) all assets were fully disclosed by both parties before the agreement was executed;
        (4) each spouse knowingly and explicitly agreed in writing to waive the right to a judicial equitable division of assets and marital rights in the event of a divorce; and

        (5) the terms of the agreement are fair and reasonable at the time of execution and at the time of divorce. 

The spouse seeking to enforce the agreement has burden of proof on these issues. 

This will be a very useful decision for the attorneys in Massachusetts who practice domestic relations and probate law.

Best,

Nancy

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Hi there,

I heard the tapes of Mel Gibson calling his ex-girlfriend this week on a newscast.  If indeed they are real, they were horrifying and to me they sounded like someone suffering from some form of  untreated mental illness.

I have posted about narcissism and sociopaths, but not yet discussed the other mental illnesses which are most frequently seen in divorce cases; addictions, bipolar disorder or borderline personality disorder. No divorce lawyer should be without her copy of "DSM-IV" (aka Diagnostic And Statistical Manual of Mental Disorders, Fourth Edition), the Bible of the American Psychiatric Association.

Nor have I discussed parental alienation syndrome (which is not yet in the DSM-IV), which I believe occurs as a result of some sort of underlying disorder on the part of the alienator, which precludes him/her from seeing the damage caused to the kids.

Bipolar Disorder, once diagnosed, is one of the most easily treatable mental illnesses; however, many patients will be reluctant to seek help, may often self-medicate with alcohol, and when diagnosed can often be non-compliant with their medication.  As a result, many of their marriages fall apart.  Mental illness is just that, an illness, and is handled by the court as a condition requiring help and support.  It can add to the needs of the recipient spouse in an alimony situation, and is often an issue raised in custody cases.  If the parent who suffers from the illness has a history of non-compliance with medication, this can be a serious factor in determining access to children.

After the fight over whether or not the Gibson tapes were tampered with, the custody battle may well shift to Mr. Gibson's mental status.

Best,

Nancy

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Hi there,

I have blogged before about the terrific resource social media is for divorce lawyers.  Today, sitting in a courtroom waiting for my case to be called I saw a case that, ironically, highlighted this very importance.  Two pro se litigants (lawyer speak for folks in a court case without lawyers) were battling over whether a dad's child support should continue for an 18 year old daughter.  Mom was arguing that the child was living at home and working on her GED degree; however, Dad had been trolling the Internet and had found Facebook and MySpace pages, as well as some other materials where the daughter was telling folks she was working as a "model and an exotic dancer."  He even had pictures of her dancing on a pole (the Judge declined to review the pole picture, wise man), and her posts from those sites where she stated that she was earning $40,000 a year.  Dad had also found on craigslist that she was looking for an apartment out of state.

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Hi there,

Maybe because I took a week off from blogging (real work intervened), but I seem to have a series of odd articles that I would like to share.

There has been a lot of interesting sociological commentary about divorce possibly being "contagious" lately.  Some of it may be linked to the Gore separation, which gets odder and tackier by the moment.

I do a lot of work representing the children of my contemporaries, so I know how heart-wrenching it is for them to experience their children getting divorced.  There is a terrific post in the Ohio Family Law Blog about how to handle an adult child's divorce.

I was in the Plymouth Probate and Family Court yesterday, a very hot day, and I was stunned to see the clothing (or lack thereof) that litigants seemed to feel was appropriate court attire.  Appearances count, dress respectfully, the judge has to.  Witness the nastiness that judicial nominees have to endure.

And finally, because I just couldn't resist, a wonderful piece about how dirt is good for you. 

Best,

Nancy

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Hi there,

This week my husband and I celebrate our 45th wedding anniversary; despite that (or perhaps because of it),  I wasn't surprised to hear of the Gore's separation after 40 years.  Their separation resounded across the blogosphere last week.  For all the speculation, it will be impossible to know what went wrong, unless a third party materializes.  The reality is that anyone in a marriage that is under press scrutiny will present a carefully crafted public picture, which may not reflect reality at all. Remember the Edwards debacle?

There was a very interesting statistical analysis of this by Betsey Stevenson, on the NY Times' Freakonomics blog.  Essentially, the most divorce-prone generation are those who married in the 1970's (whew, I missed it by 4 years).  I wonder if this is the result of the Woodstock years or yet another byproduct of feminism?

More intriguing perhaps, is the timing of the Gore's daughter's separation.  This ties into the concept that divorce is catching.  If you hang out with folks whose marriage is unhappy I think that translates into being more focused on what is wrong with your marriage; if you hang out with folks who are content with their partners, the good stuff resonates, and you think more about what is great about your spouse. 

Best,

Nancy

**UPDATE:  Perhaps not at all what we were led to believe?!  A third party may have just materialized after all!

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Hi there,

In most divorce agreements there are a number of standard provisions (often called "boilerplate").

The most important of these provisions are:

1. The ability of the parties to have separate wills - this covers the right of both parties to exclude the other from their estate plans

2. Waiver of future claims - this generally says that except as written in the agreement neither party has any claim against the other.

3. Personal freedom to live your own life - this is not a restraining order but it is put into all agreements.  I think it may stem back to the days when women were treated like property and needed a recitation of their ability to live on their own.

4. Completeness of this agreement - this basically says the agreement is the agreement and side deals do NOT count; so, if your soon-to-be-ex promises you something, but says he won't put it in the agreement and to just "trust me" - don't.

Then there should be a provision about how to handle future disputes.  Are you going to require trying to mediate first?  Or are you going to simply say that the court is where future problems are worked out.  Maybe you have a parenting coordinator or an arbitrator to divide personal property.

If you wish, this is the point where you can resume your maiden name.

And finally the magic words: "status of the agreement"

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It appears that the weather will be cooperating this weekend, so in honor of "beach weather" here is a list of the Top 10 US Beaches (courtesy of Boston.com).  Also this clip, sent to me by a colleague, made me smile - make sure to turn on your speakers!

I hope you have a wonderful, sunny Memorial Day Weekend.

Enjoy!

Nancy

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Hi there,

Almost everyone would love to know before marrying, whether or not they will end up divorced, if only to avoid the need for a prenup.  Anneli Ruffus has written a very interesting compilation of research pieces for The Daily Beast on "15 Ways to Predict Divorce."

I have always believed that parents of children with disabilities have a much higher divorce rate and now there seems to be research that indicates that parents of twins are also at risk

In addition to all the other life altering issues they face, military families have a much higher risk of divorce as well.

And finally, here is a tacky piece on the Getty divorce. The reason all of the personal financial and spending material was in the court record available for the writer to find, was that Mrs. Getty apparently was trying to set out not only his bad behavior but their lifestyle, in order to obtain the support she wanted.

Best,

Nancy

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Hi there,

In this unhappy recession, many folks who are getting divorced are dealing primarily with how to divide debts, but even if you are solvent you need to consider the various family liabilities out there.

You should consider who will pay the mortgages: the mortgage on the house, any equity loan or credit line, and any other mortgage on any property.  If you are on a mortgage and you will not be continuing to own the property you should arrange to have your ex take your name off the mortgage.  This will mean that he/she will need to refinance.

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