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,

I was sorry to see that Tuesday the Maine voters rejected single sex marriage.

In Massachusetts, however,  the Appeals Court  in what is known as a "slip opinion" (a slip opinion does not have the dis-positive force of law, but can be utilized as part of a court argument or brief), has extended the time concept of the length of a single sex marriage backwards from the date of marriage to the date of the couples' commitment ceremony.  This means that gay couples may be considered to have been married longer than in fact they were.  This is not the first time Massachusetts has made this determination (again in a slip opinion).  This potentially has huge significance for divorcing single sex couples.

There is however a Supreme Judicial Court decision, and in Massachusetts, SJC decisions always trump Appeals Court decisions.  The SJC held that in a personal injury matter, the length of the marriage was ONLY that time in which the parties were indeed married.

This has the effect of muddying the already murky water of single sex divorce in Massachusetts a little bit more.

Best,

Nancy

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Hi there!

I recently received a question from a reader regarding narcissism and narcissistic partners.  I initially intended to reply to her privately, but as I thought about my response, I realized that there was enough "meat" here to share in a post to all.

Reader asks:

"Christie Brinkley seems to have been in the news a bit lately with her divorce. I have been struck by her comments on a narcissistic partner, and wonder since I think that is the case with my ex, how often it is that one spouse is a narcissist and what can be done to get through to one rationally. Is there any hope of co-parenting with a narcissist?  Any thoughts or comments on this celeb. case would be helpful. Thanks!"

My response:

Narcissists are very nasty people but charming too.  A lot of them end up in divorce because no one can worship them enough, and all the air is theirs, not their spouse's. 

No divorce lawyer should be without her copy of "DSM-IV" (aka Diagnostic And Statistical Manual of Mental Disorders, Fourth Edition).  According to this "bible", written by the American Psychiatric Association, the diagnostic criteria for Narcissistic Personality Disorder is as follows:

"A pervasive pattern of grandiosity (in fantasy or behavior), need for admiration, and lack of empathy, beginning by early adulthood and present in a variety of contexts, as indicated by five (or more) of the following:

1) has a grandiose sense of self-importance

2) is preoccupied with fantasies of unlimited success, power, brilliance, beauty, or ideal love

3) believes that he or she is "special" and unique and can only be understood by, or should associate with, other special or high status people (or institutions)

4) requires excessive admiration

5) has a sense of entitlement

6) is interpersonally exploitative

7) lacks empathy: is unwilling to recognize or identify with the feelings and needs of others

8) is often envious of others or believes that others are envious of him or her

9) shows arrogant, haughty behaviors or attitudes"

The DSM-IV goes on to indicate that narcissistic personality disorder is relatively rare ( "from 2%-16% in the clinical population and less than 1% in the general population" per DSM-IV).  I am sure lots of just plain selfish, non-empathetic people get classified as narcissistic, but it doesn't make them any easier to deal with in a co-parenting situation.  I think you are going to have to realize that only you will put your kids first.  I don't know if your divorce is over, nor do I know what the actual issues are; but I have found parental coordinators very useful, particularly when one parent is excessively difficult.

Additionally, here is the recent news on Christie Brinkley that sparked this interesting question.  

Best,

Nancy

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Hi there,

According to the New York Times, the highest court in New York will hear arguments on whether or not New York will honor marriages between gay and lesbian couples that are legal elsewhere.

I was taught in law school that the constitution requires states to give "full faith and credit" to the laws of other jurisdictions, such as marriage, adoptions, etc.  The federal Defense of Marriage Act (DOMA) complicates the situation, as federal law trumps state law, so states have an argument available if they do not recognize gay marriages which are legal elsewhere, as legitimate.

As usual, Daniel Clement had a very good post on this as well.

Best,

Nancy

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Hi there,

Boy do the weeks go by fast!  It feels like I just did one of these yesterday.

I had a post here last week on how not to divorce using the Gosselin's embarrassing public saga as an example.  Apparently, I was not the only one who thought they were over the top. 

I am frequently asked what books on divorce I can recommend and embarrassingly, I really have no suggestions.  Some time ago a colleague sent me this post about suggested reads courtesy of Atty. Stephen McDonough's "The Divorce Collaborative" blog.  I have checked out the list of suggested books and they are indeed worth reading.

Simply because it really falls into the category of child neglect (abuse?), I have a link to a good story about last Friday's idiocy, aka the Balloon Boy saga, which now appears to have been a hoax.

And finally, yet another hoax.  This type is more common unfortunately.

Have a good week!

Best,
Nancy

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Hi there,

Social security law makes provisions for divorced spouses by allowing them to collect a portion of their former mate's social security benefits, provided they have been married more than ten years. This is terrific for both parties as it does not deduct the amount paid to the former spouse from the larger wage earner's payment.  In effect, a divorced couple jointly receives more than the same couple would, were they still married.

I became aware through Daniel Clement's New York Divorce blog (a super resource) of some very tragic circumstances which have caused some folks to divorce and then live together in order to maximize their benefits.

Now, call me cynical, but I bet this happens occasionally for not so tragic reasons as well.

Best,

Nancy

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Hi there,

One of the terrific things about being a blogger is I have an ironclad excuse for reading junky celebrity news. I will freely admit to happily reading all about the Gosselin's divorce for some months now and even commenting on it.

They, actually mostly Jon, have been providing object lessons in what not to do during a divorce:

First, do NOT indulge in very public displays of affection with your new flame. Your ex will be sure to hear about it and it will not make your life easier. Also, don't do it where your kids might see or hear about it . In Jon's case this was in all the junk mags in the grocery checkouts.

Second, do NOT violate court orders by withdrawing money from accounts that you are supposed to leave alone.

Third, do NOT bite off your nose to spite your face. Don't quit your job (or stop production of your TV series if you have one) just to hurt your ex. It will hurt you and your kids far, far more.

In short, try to behave like a civilized, adult human being.  Most divorced and divorcing folks manage to do so. The ones that don't end up with HUGE legal bills.

Best,

Nancy

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Hi There,

From taxes to Alec Baldwin giving advice on how to divorce  - this week's selection really is a very mixed bag.

My favorite tax blog had a funny post on how not to do your taxes.

I have watched Alec Baldwin's very public display of parental ineptitude with some amazement, but I was even more amazed to hear he had written a book on the topic.

Texas has a constitutional amendment which defines marriage as between one man and one woman but apparently if you are gay and married elsewhere you may be able to divorce in Texas. However Gideon Alper, another one of my favorite bloggers, had a more in depth analysis which is very interesting.

And since death is even more inevitable than divorce, I am including a link to a very informative piece on what to do when a family member dies.

Best,

Nancy

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Hi there,

One of the toughest things to watch as a divorce practitioner is parents putting kids in the middle of the parental war zone. Passing messages, engaging in passive aggressive behavior over visit times, and worst of all, letting kids see the divorce papers - the list of ways to hurt children is practically endless.  Parents who would never deliberately hurt their kids in the frenzy of the divorce put their children squarely in the middle. A colleague just sent me a terrific blog from Great Britain on how to handle children in a divorce.

Some parenting truths are universal.

Best,

Nancy

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Hi there,

I have a habit of saving articles and other blog posts people send me in the hope that I might actually use them in a specific post.  Since my computer (who I think of as a separate and occasionally malignant co-worker) lost all the ones I had saved, I've decided on random Monday sto post all of the interesting stuff, relevant to divorce or not, I have been saving.

So here goes the first Monday Miscellany:

1.  Divorce is one of the most stressful life experiences there is.  It is topped only by the death of a spouse, or God forbid, that of a child.  Daniel Clement,  who writes a terrific divorce blog in New York, recently had an interesting post, "Divorce is Bad For Health," on his blog.

2.  If you are in need of some stress relief here is an article from the "Happy You, Life Coaching & Events" blog that might be useful.

3.  In the category of waaay too much stress, many divorcing folk find themselves having to deal with elderly and/or ill parents at the same time.  This post from Leanna Hamill's "Massachusetts Estate Planning & Elder Law Blog" gives some useful advice on how to handle the practical needs of a parent entering a hospital.

Take care!

Best,

Nancy

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Hi There,

Since quarterly taxes are due now, the IRS is on my mind, and so I thought that a post on taxation might be apt.

The tax implications of divorce is an area where questions come up consistently.  Taxes affect both support and property division. The rules and results are very different in gay and heterosexual divorces.

In a heterosexual divorce the division of property will be tax free provided the lawyers structure the pension division properly. Child support is always taxable to the payor spouse and tax free to the recipient.  Alimony is deductible from the income of the payor spouse and includable in the recipients income.  There is a very good piece in TAXGIRL (one of my favorite blogs) that goes into more detail.

If you are gay and getting a divorce the situation is very different ( and this is one of the reasons Martha Coakley is suing the Feds) Gideon Alper, a law student writes a terrific blog and he had a post on this as well.

Suffice it to say whether or not there was a third party in the breakdown of your marriage you cannot ignore the taxman who will be the third party in your divorce.

Best,

Nancy  

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Hi there,

Massachusetts has had mandated parent education for some years.  The course is titled "Understanding the Effect of Divorce on Children" and more information can be found here (PDF).

I have always thought it was a good idea, not everyone gets it, of course, but I think many do. Simple civility and how to keep the kids out of the middle are a great idea for divorcing parents.  A colleague sent me this article* which seems to indicate that these requirements have a beneficial effect.

I was also interested to see that the divorce rate is dropping.

Best,

Nancy

*UPDATED 11/30/09: Link removed as article now blocked from public viewing by the AP.

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Hello there,

I find this to be a very interesting topic that everyone has a different opinion about and as I wrote this I realized what I was writing was different from my usual posts, but what the hell?!

I am sure one of the more difficult issues faced by a parent contemplating divorce is the effect of the divorce on the kids. I see many folks who are uncertain as to whether or not to stay in a pretty untenable situation simply because they want their children to be older and they think more able to accept before they divorce.

Through years of watching families, reading and observing children of friends, I am not so sure that this is so. I actually think the younger the kids are when the divorce happens (assuming the parents are civil and flexible about parenting) the easier it is for the kids to adapt. A 2 year old has very little difficulty where a 13 year old is at a developmental point where this can be much harder. I also think that a child in college may be more vulnerable than one who is around and in high school. And oddly enough I think that adult children have a very tough time, perhaps because they need to then rethink their childhood and possibly because parents tend to be more open with an adult child.

I would very much like to hear your comments and feedback on this post because as I said it is totally anecdotal and may be off base.

Best,
Nancy

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Hi there!

Divorce and taxes aren't quite as inevitable as "death and taxes," but with one out of three marriages ending in divorce it is close.  One of the blogs I subscribe to is called taxgirl and I just read a very good article there on divorce and taxes.

One thing to remember if you are part of a single-sex, married couple is that this does not apply to you as DOMA precludes the IRS as treating you as married.

Stay cool,

Nancy

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Hi there,

I was stunned to read this article.  Practicing in Massachusetts you can really be unaware of the level of prejudice in other areas of the country.

Best,

Nancy

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Hi there,

I have always warned clients about how easy it may be for a disgruntled spouse to get into your email.  Now it seems that you have to worry about your cell phone too.  According to an article by Claud L. ("Tex") McIver and Deepa Subramanian of Fisher & Phillips LLP published on the Law360 website, it is now possible to purchase software to illegally tap cell phones to listen to conversations at any time, and anywhere.  The software is easily accessible via the net and can be installed in less than 10 minutes.  Apparently it is advertised as a good way to catch a cheating spouse.  This is of course, highly illegal, but a real threat.  Apparently the best way to protect your cell would be to password protect it and not let it out of your possession.  On the same idea, here is an interesting article about some other spyware used in divorce.

So as my not-so-sainted granny used to say, never write anything you wouldn't want to see in print, and I guess that now goes for what you say too.

Best,

Nancy

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Hi there,

I have been saving articles on how bad economic times cause folks to stay together since last fall. These pieces have been really prevalent and I had been wondering what it was that made my practice and the domestic relations practice in general at Burns & Levinson different.  We have been extraordinarily busy since January.  I had come to the conclusion that because most of our cases are high end divorces the bad economy was causing more of my clients to move forward rather than wait.  This was confirmed by an article in the American Bar Association Journal.

I think the reality for the decrease in some divorce practices is more complex than simply a result of the recession.  If you look at this post from the Freaknomics blog it is clear that divorce is decreasing not as a result of economic change, but just as a general demographic reality.

I would love to think that this is because people are becoming wiser or kinder, and that may be true, or more likely the young middle aged generation now is the first generation to grow up that were children of divorce, and children of divorce understand firsthand what divorce means.

Best,

Nancy

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Hi there,

I know a topic is hot when before I hit my desk in the morning at least 5 people ask me if I saw Jon & Kate discuss their pending divorce on TV last night.  Since I have never seen the show (Jon & Kate Plus 8) my answer was no but it seems to have an unholy fascination, even for divorce lawyers. I understand the Gosselins publically renewed their vows last year so perhaps that was the kiss of death

I am not sure if it is the reality show media circus or the adorable plethora of kids, but there is no mistaking the fascination. This article from www.smartmoney.com provides a vehicle for a discussion of some issues about divorce which may not ordinarily get raised.

Enjoy!

Best,

Nancy

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Hi There,

If you are one of the approximately 95% of couples whose divorce will settle by agreement, be grateful; for the remaining 5%, this post is the barest of bare-bones descriptions of the process.

Trials are very artificial creatures and the preparation immediately leading up to them is easily as long and costly as the trial itself.  You should expect to spend time with your attorney getting prepared for trial, going over the questions she will ask you and preparing you for cross examination.  She will of course be preparing exhibits and the questioning of other witnesses as well.

The trial itself follows a clear set of rules, the plaintiff's attorney and the defendant's attorney make opening statements, then the plaintiff's attorney calls her first witness and asks him questions, this is called direct examination. Then the defendant's attorney has the opportunity to cross examine the witness.  Then the plaintiff's attorney has the opportunity to clarify (or try to fix) any damage done on cross and generally this then is repeated with the second witness, etc. This continues until the plaintiff has finished putting in her case.  Then it is the defendant's turn and the same process continues.  There are very arcane rules as to how to ask questions and what evidence is admissible.  In Massachusetts, private discussions between Husband and Wife, with a few exceptions, cannot be testified to.

At the close of the evidence some judges like to hear closing arguments from the lawyers, but most do not.  After the trial the lawyers generally have some time to prepare further written submissions for the Court based on the evidence that has come in at trial 

A trial is NOT the forum to try for one-upsmanship on your soon-to-be ex.  Remember that your demeanor may be as important as your words.  So...regardless of what is said: do not make faces, do not sigh audibly or in any way indicate that you disagree with what  the other side is saying.

Generally you will wait a while to receive the decision.  Judges are supposed to render them within 90 days but this is rare.  I have had cases take over a year.  Another good reason to settle.

Best,

Nancy

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Hello there,

The uncontested divorce hearing is often a culture shock to the participants.  While there is a great deal of ceremony around the actual act of marriage, divorce itself has all the charm of a trip to the Registry of Motor Vehicles.

Everyone needs to attend the hearing.  When the case name is called the clients and their attorneys stand at the counsel table.  The Judge may or may not read the agreement.  The attorney for the plaintiff (remember the plaintiff?  He or she is the one who filed) asks her client a series of very simple questions, name, address, date of marriage, date of separation, etc.  The Judge will ask the same questions if there aren't attorneys present and then the Judge will ask each party if the financial statements are accurate and if they believe the other party's financial statement is also accurate and then the Judge asks a series of questions designed to preclude anyone in the future attempting to set the agreement aside due to buyer's remorse, i.e. do you understand the agreement?  Did anyone coerce you into signing?  Do you think it's fair and reasonable? ..etc. Then the Judge explains how long it will be 'til the divorce is final (depending on the type of filing, 90 days or 120 days).  She then wishes everyone well and the divorce is over.

Having stood next to countless clients at this moment I know that it feels overwhelming and somehow anticlimactic.  There is no real recognition that this is a truly life altering event.  Be prepared, even if you are happy to have the process itself end, to be a bit shaken by the actual hearing.

Best,

Nancy

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Hi There,

When parents cannot communicate or agree after a divorce a parent coordinator is sometime used to help resolve matters. There's a very interesting article in this week's issue of Massachusetts Lawyer's Weekly which gives a much more in- depth presentation. if you are involved in any custody or disputed parenting actions you might want to read it.

There is a dispute among divorce practitioners as to the utility of parent coordinators.  A few extremely good divorce litigators  refuse to use parent coordinators at all. I happen to think that in the right circumstances and with the right parent coordinator they can be invaluable. No matter how much a parent coordinator charges, it will be less than the costs of litigation. I also think there is a true psychological benefit to the kids to keeping their parents out of court.  

May you never need a parent coordinator.

Best,

Nancy

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Hi There,

I was reading the other blogs listed on the side mine and there was this very interesting post on the New Hampshire Family Law Blog.  It goes to show how complex the question of gay marriage and divorce really is.

Then my partner, Peter Zupcofska, was interviewed and did a great job setting out the legal differences and how to potentially handle them.

Best,

Nancy

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Hi there,

It is exciting to see the New England states recognizing the fairness of allowing gay folks to marry. It is a huge step and where people can marry they also inevitably will pay taxes and some of them will later divorce.  In these areas much inequity still remains.

The Defense of Marriage Act (DOMA) impacts the income tax and divorce tax status of gay couples regardless of whether or not they are legally married.

They cannot file federal income taxes as married filing jointly; when, and if, they divorce any transfers of property between them are taxable events, as they are not for heterosexual couples, and there is no deduction for alimony.

All of these are costly, but still it is terrific to have another state recognize gay marriage.

Best,

Nancy

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Hi there,

For most divorcing couples the legal process begins with filing what is called the complaint. This is a form (PDF) which sets out the basic information the Court and the other side need. In addition to the obvious, it asks where you last lived together as this tells the court whether or not you have filed in the right county and whether Massachusetts has jurisdiction.

It lists the children, asks if anyone has filed previously and also asks what are the grounds for divorce. Massachusetts is a "no fault" state, we call it "irretrievable breakdown." In practical terms this means that either a person can get a divorce without the assent of the other party and without having to prove the other party at fault. Which brings me to the fault grounds. We have a lot of choices; irretrievable breakdown (two kinds, with an agreement and without one) and fault grounds:
• Adultery
• Cruel and abusive treatment
• Utter desertion continued for one year
• Sentence of confinement in a penal institution
• Gross and confirmed habits of intoxication caused by voluntary and excessive use of intoxicating liquor, opium or other drugs
• Gross or wanton and cruel refusal or neglect to provide suitable support and maintenance
• Impotency

I've been practicing 30 years and I've seen a lot of cases where adultery has occurred, this obviously has hurt the non cheating spouse BUT I've only used adultery as the grounds a few times, generally when the client had to declare those grounds in order to comply with certain religious requirements. The reason for this restraint is that Judges tend to frown on using the more dramatic grounds because the complaint is a public document, easily accessible and potentially in the future could be viewed by children, employers etc. As more and more counties get the dockets online this reason has become even more compelling. This doesn't mean that you ignore bad behavior, conduct is one of the areas a Judge must consider if he or she is trying the case, it just means that you cover all types of bad behavior by filing for cruel and abusive treatment. Everyone knows that cheating on your spouse is cruel. Right?

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