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,

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,

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,

As Massachusetts considers refining the law on alimony, the public commentary is huge.  It has made me think through exactly what I think about the current law and the proposed changes.  I have initially addressed this in the blog, as I recognize that making alimony payments (or not making them) is one of the truly hard and hot button issues in divorce.  There are both payers and payees who have been deeply hurt and aggrieved by the system.  Most of these individuals may well find this post unpalatable.  As I think about that, I am not sure anyone finds having to pay alimony a good thing.  It is however, often a necessary evil, and as an advocate if I represent the spouse who is paying, I try to get the amount and time frame as minimal as possible.   Alternatively, when I am the advocate for the recipient, I try to get the amount and time frame as broad as possible.  That is the joy of being a litigator - you get to argue both sides of every question, sometimes on the same day.

Joking aside, I firmly believe that setting parameters for judges to follow and then allowing them discretion is the fairest way to go.  Does this mean all will be treated fairly?  Of course not!  The risks of litigation, bad lawyering, bad judging, or just plain bad luck, are why I consistently recommend that litigants settle out of court. 

However, a rigid formulaic approach to alimony would result in far more examples of unfairness than the suggested reform, as approved by the Boston Bar Association.

The suggested reform does allow Judges the authority to set a time frame for the duration of alimony, which had not previously been the case.  If passed, this should have a salutary effect, both on the results of litigation and on the terms in agreements. 

Best,

Nancy

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Hi there,

One of the risks in truly bitter custody cases is that one parent or the other will misuse the system and call the Department of Youth Services with a phony complaint. The worst case scenario is the children can get yanked from their home, the best case scenario is the innocent parent and the kids will be put through the unnecessary hell of an investigation.

I was horrified to realize that this can happen to an ordinary, intact family who has done nothing more than drop off some ordinary kid pictures for development.

Best,

Nancy

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Hi there;

Right now one of the more interesting discussions in matrimonial law in Massachusetts is how long should alimony last.  Currently, judges lack the authority to terminate alimony with any finality, due in part to the fact that unless there is an agreement between the parties that the court won't be able to change the alimony provisions, any judgment regarding alimony is not necessarily final and often must be rather open-ended (or as we in the trade describe it alimony ends at death or the recipient's remarriage).

This has resulted in a lot of anomalous situations, the most common of which has to do with retirement.  As a result, there is a move afoot to eliminate alimony upon the retirement of the payor spouse.  There is currently a case pending before the SJC which will determine how this goes. Boston Magazine had an interesting article on this recently.  However, as with so much in family law, there can be circumstances that require a different result, as well as the application of judicial discretion.  David Cherny, another prominent divorce attorney in Boston, had an interesting comment on Fox News in this regard.

As with so much else in divorce, I think the question of alimony should be decided on a case by case basis.   Formulas tend to miss the realities and nuances of people's lives and a divorce decision should, if possible, honor that.

Best,

Nancy

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Hi there,

Since we learned yesterday that Massachusetts Attorney General Martha Coakley is filing a law suit against the federal Defense of Marriage Act (DOMA), speculations have been flying about what this means and what will happen. The lawsuit questions the constitutionality of Section 3 of the law, which defines the word "marriage" as "a legal union between one man and one woman as husband and wife."

Why?
We just celebrated the 5 year anniversary of allowing same-sex marriage in Massachusetts. Since then, at least 4 other states (Maine, Vermont, Connecticut and Iowa) have legalized gay marriage. Even though gay marriage is recognized in these states, it is still not recognized at the federal level.  This causes problems on many levels – taxes and adoption of children to name just two. According to the Boston Globe, “The suit filed in US District Court in Boston claims that the Congress, in enacting the DOMA, ‘overstepped its authority, undermined states' efforts to recognize marriages between same-sex couples, and codified an animus towards gay and lesbian people.’”

Issues
Gay and lesbian married couples struggle with very different tax treatment as the federal government, the main taxing authority, doesn't recognize gay marriage due to DOMA.
Due to the current regulations under DOMA, we have to approach gay divorce with a very different analysis then divorce between a straight couple both because of the very complex tax implications and the issue of what is the actual length of the marriage (one of the critical factors in setting support and dividing property).

So I am delighted to see that Attorney General Coakley has done this.  It will be fascinating to see what happens,

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,

Discovery is the point in the process where the attorneys, using various legal tools, are able to quantify just what is going on financially, as well as with other concerns, such as custody or parenting issues.

The first financial discovery tools are the Rule 410 production and the financial statement, both of which are described in a prior post. Once those have been exchanged, the attorneys usually move on to Requests for Production of Documents (RPD) which are expansions on the Rule 410 production. If yours is a case where there are business valuation issues or a need for a forensic accountant (more on those in later posts) then those experts will chime in here with a request for the documents they will need.

At the same time as the RPD is sent out, the attorneys often will exchange Interrogatories, which are a limited series of questions to be answered under oath. Generally the lawyers also ask what are called Expert Interrogatories, where we request information from the experts and their reports so that both sides know what all of the valuations are. These experts can range from real estate appraisers, business valuators and forensic accountants, all the way to doctors and psychologists etc. if there is a custody issue or a medical issue involved.

Once the documents have been exchanged and the Interrogatories answered, (the rules provide time frames for these - which generally are expanded) the next steps are depositions, which are sessions in which you and your spouse, separately, are brought into the opposing attorney’s office to answer questions under oath. In addition to each spouse, depositions of other folks occur as well. Depositions are so complex I will do a separate post on them later.

The rules also allow for requests for medical examinations, examinations of real estate and art antiques, etc. as well as a nifty document known as Requests for Admissions. This permits one side to really pin down the other by requiring them to admit to or deny facts. If they deny a fact that you later prove, they have to pay the cost of the proving. This is an effective procedure that is used a lot in civil practice but not frequently enough in divorce cases.

Discovery can be lengthy and extremely expensive but also is a very necessary tool in many cases.

Take care,
Nancy

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