What if I want to try Reconciliation? Is there a way to protect myself?

One of the questions that I ask clients in our free 1-hour initial divorce consultation, is whether or not they believe their marriage is irretrievably broken down with no chance of reconciliation. This is the standard in Massachusetts for a Judge granting a divorce. Many potential clients, despite having scheduled a divorce consultation, are actually unable to answer this question because there is still some "chance of reconciliation." In these instances I explain their rights in a potential divorce case but recommend that they try counseling and not come back to my office unless they are sure about their answer. For some, they fear that trying to reconcile will put them in a vulnerable position financially and for those instances there is now a solution: Post-nuptial agreements (also called marital agreements) allow married couples to make contracts that will control what happens if they get divorced.

A post-nuptial agreement can resolve the financial concerns and assure someone they are protected, so they can then focus their energies on a true reconciliation without worrying if they are being taken advantage of. Similar to a pre-nuptial agreement, there are very specific restrictions, on how a post-nuptial must be created for it to be enforceable in Massachusetts.

As delineated by a recent Massachusetts Supreme Court case, there are even more requirements for a valid and enforceable post-nuptial agreement than there are for a pre-nuptial agreement (though many of the requirements are similar). Ansin v. Craven-Ansin, No. SJC-10548, July 16, 2010.

Links to news stories, the opinions of numerous attorneys and mediators as well as the Ansin opinion itself are all available at MaritalMediation.com. As a summary, the Ansin decision requires that a post-nuptial agreement withstand the following scrutiny to be upheld:

• Both parties must have had the "opportunity for counsel of own choosing."
• The agreement must be in writing.
• The agreement must be made with clear knowledge of the specific marital rights being waived.
• There must not be any fraud or coercion.
• The agreement must be fair and reasonable in view of M.G.L. c. 208 s 34 and not so different from a division under that statute as to be unreasonable.
• The agreement must be fair with respect to the impact it will have on the children of the marriage.
• The agreement must be fair with respect to the impact it will have on any third parties.
• The parties must have disclosed in writing a statement of assets with approximate values.
• The parties must have disclosed in writing a statement of their approximate income.
• The parties must have disclosed in writing a statement of any reasonably expected income changes in the "near future".
• The commitment to reconciliation must not be falsely misleading.

In order to ensure that you comply with these requirements, each party to a post-nuptial agreement should consult with their own counsel and review this list (as well as the Ansin decision).

Thank you to Fern Frolin of Grindle, Robinson, GoodHue & Frolin for bringing this latest news to our attention in her presentation at the MCFM Family Mediation Institute on November, 22, 2010.

The Fight for Gay Marriage and Gay Divorce

As described in a recent article on CNN Living (Serious legal hurdles for gay divorce), just because gay and lesbians can get married doesn't mean they can get divorced.

Gay and Lesbian couples who marry in one of the few states that allow gay marriage may not be able to get divorced if they move to another state. Currently only Massachusetts, Iowa, Connecticut, New Hampshire, Vermont, and the District of Columbia issue marriage licenses to same-sex couples.

As the CNN article describes, the Texas Attorney General is appealing a ruling by a Texas Judge allowing a lesbian couple (who had been married in Massachusetts) to get a divorce in Texas. An attorney who represents a gay couple awaiting the Texas decision noted "Ironically, if the attorney general [of Texas] is so against gay marriage, why is he trying to hard to keep these two men together?"

Regardless of the ruling in that case, getting divorced in other states isn't the only hurtle facing gay and lesbian couples who want a divorce. DOMA, the Defense of Marriage Act, denies same-sex spouses access to many federal benefits. In a same-sex divorce case, even in Massachusetts, the couple will not be able to accomplish certain typical divorce resolutions in the same way as an opposite sex couple.

For example, a typical division of an asset in a divorce is to transfer a portion of one party's retirement asset to the other. This can be accomplished without tax consequences via a Qualified Domestic Relations Order, but since the IRS does not recognize same-sex marriage, this same transfer would have significant tax consequences in a same-sex divorce. Another example is the tax treatment of alimony. The payment of alimony by the payor to the recipient is taxable to the recipient and tax deductible to the payor. This allows for a shifting of the tax burden, and also usually for a lower tax burden overall because some of the income is shifted to a lower tax bracket. Again because the IRS does not recognize same-sex marriages, same-sex couples who have an alimony order will not receive this tax benefit.

For a further description of how DOMA affects same-sex marriages and the current cases challenging it ( ) check out this article written by our Law Clerk, Jonathan R. Eaton: Defense of Marriage Act: Ability of the Federal Government to Deny Access to Benefits to Spouses in Same-Sex Marriages.

New Same-Sex Divorce Resource

In Massachusetts, same-sex marriage is a right, and that means, for some, same-sex divorce will follow. When the unfortunate happens, can same-sex spouses hire any divorce attorney? Do all the same laws apply to these couples?

You might think that the legalization of same-sex marriage means that these couples have all the same rights as opposite-sex couples, but you would be wrong.

Even in the Commonwealth of Massachusetts, the discriminatory laws and practices of the federal government and other state governments can cause legal problems for same-sex couples who are married here. In addition, because gay marriage is a relatively new right in the Commonwealth, we are still learning how the laws of divorce and separation will be applied to these marriages.

There is a new site dedicated to providing information about the specific issues involved in Same-Sex Massachusetts Divorce cases called: SameSexMassDivorce.com.

SameSexMassDivorce.com is a resource where same-sex spouses considering divorce or already involved in a divorce can learn about the differences that face a same-sex couple in a divorce case, custody case, child support case, or an alimony case. There is also a same-sex version of our unique Parenting Plan Worksheet tool.

October is National Domestic Violence Awareness Month

President Obama on September 30, 2009 proclaimed October, National Domestic Violence Awareness Month.

As with any issue that endangers the health, safety or welfare of individuals, the first step towards ending that danger is to raise Awareness.

It seems that we are bombarded everyday with walkathons, and fund raisers, and pharmaceutical commercials that want to raise our Cancer Awareness, our Heart Disease Awareness, even our Awareness of Erectile Dysfunction. It becomes easy to forget that there are dangers in this world, and even in our own backyard, that don't stem from viruses or diseases. There are dangers, such as Domestic Violence that aren't caused by hunger or a germ, but instead by poor choices and a failure of support.

It's hard to know if there will ever be a cure for cancer, but we know the cure for Domestic Violence. A safe home and access to justice can provide victims of Domestic Violence with a voice to end their suffering.

If you or someone you know suffers from Sexual or Domestic Violence, call the National Domestic Violence Hotline at 1-800-799-SAFE, or if you live in Massachusetts check out these resources available on the Massachusetts State website, and seek help.

Thank you to Danielle G. Van Ess, Esq. for reminding us that sometimes there are greater issues to blog about than just questions of court and law.

When does 30 + 90 not equal 120? In Divorce Court!

As we covered in a previous post (What happens after my Divorce Agreement is approved by a Judge?), there is a 90-120 day waiting period after your divorce is allowed before it becomes final in Massachusetts. But that 90-120 day waiting period may not be exactly 90-120 days from your settlement date:

If you filed a Joint Petition for Divorce in Massachusetts then you will participate in an uncontested divorce hearing and the Judge will then issue Findings of Fact the day of the hearing. A Judgment of Divorce Nisi will issue after thirty (30) days, and it will become Absolute after a further ninety (90) days. This means that if you file a Joint Petition for Divorce you are not legally and officially divorced until at least 120 days after the divorce hearing date.

If you filed a Complaint for Divorce then your case will end either with a trial (if you don't settle) or an uncontested divorce hearing (if you settle). If you reach an Agreement, then a Judgment of Divorce Nisi will issue and be effective as of the date of the uncontested divorce hearing, and it will become Absolute after a further ninety (90) days. This means that if you file a Complaint for Divorce you are not legally and officially divorced until at least 90 days after the divorce hearing date.

Since the statute (M.G.L. c. 208 s 21) simply calls for judgments to become final after the "expiration of ninety days", why would it take longer? Because the Court is not open on holidays and weekends, and this can affect the final effective date. In a Joint Petition this can also affect the date the Judgment actually issues as well, since it is thirty days after the hearing, and not the same day as the hearing as in a Complaint for Divorce.

To make sense of all this, it helps to view an example:

Assume that you file a Joint Petition for Divorce and your uncontested hearing date was on April Fools Day, Friday, April 1, 2011 (you may read into the choice of that date whatever you choose to).

Thirty days after April 1, 2011 was Sunday, May 1, 2011 (TIP: if you don't like counting on a calendar use Wolfram Alpha for quick date calculations). Since the court is not open on Sundays, the Judgment of Divorce Nisi in this case would have issued on Monday, May 2, 2011.

Now to calculate the Judgment of Divorce Absolute date, we would count 90 days after May 2, 2011, which results in Sunday, July 31, 2011. Again, the court isn't open on Sunday, so the date of Divorce Absolute shifts to Monday, August 1, 2011.

If you had simply added 120 days to April 1, 2011, you may have thought that your Divorce Absolute date was Saturday, July 30, 2011, when in fact the actual date was Monday, August 1, 2011. While you could still celebrate on the previous Saturday, the actual date does have a legal effect on certain issues (to read more on those issues read our previous post: What is the purpose of the Divorce Nisi waiting period?)

In this example 30 + 90 = 122. Welcome to math in the Divorce court!


Thanks to Robin Chaykin, Esq. of Fraser & Galanopoulos for bringing this discrepancy to our attention!

What if you were never born?

No, this is not a post about "It's a Wonderful Life". But I will tell you a story about a man who was told by the Town of Carver that he did not exist.

While in the Plymouth Probate and Family Court last Tuesday, June 30, 2009, waiting for the Judge to call my client's Motion for hearing, I was listening to the presentations made by other litigants in Court for hearing on that day.

One of these litigants was a quiet man. He was accompanied by his Wife, who did most of the talking for him. She explained to the Judge that her husband had requested a copy of his Birth Certificate from the Town of Carver only to discover that they had no such record. This was puzzling to her and her husband because he had grown up in Carver and lived much of his life there.

He had a binder of evidence including school records, an Affidavit of one of the women present at his birth, and even military records. This man, who the Town of Carver didn't think existed, had even served our country.

Although most of you are unlikely to encounter this type of existential dilemma, I thought I'd share with you the solution. If you are ever told that your birth record has been destroyed (and you were not recently visited by your guardian angel), then you should put together just such a binder and go to the Probate and Family Court in the County in which you were born. You will have to file a Complaint in Equity under M.G.L. Chapter 46 Section 4, and after providing notice to the clerk of said Town, you will be able to present to the Judge proof that you exist (other than your being there, of course).

This is, incidentally, the same process used for mothers who give birth to a child without a physician or hospital medical officer in attendance, if the clerk of their Town refuses to record the birth. Although, that situation is probably more likely, it's not quite as interesting as the man from Carver who was never born.

Custody Reform Summary: The Good, The Bad, and The Compromise

There are currently six pending bills which would make significant changes to the current Massachusetts custody statute and they have all been reviewed in depth in this forum over the last few weeks. If you need a quick cheat sheet for how they compare, below you will find a table that summarizes the proposed changes in each bill.


For our recommendations, keep reading after the table.

Current Law	Proposed Bill	Proposed Change
P1 – P5 Definitions of Custody	S.659	Shared physical custody definition changed to state “child shall reside equally”, and adds definition of “parenting plan”.
	S.847	Definitions Deleted Entirely
	H.1306 & H. 2684	No Change
	H.1330
	H.2244
P6 – Rights of Parents held equal absent misconduct. Court shall consider adverse effects of past or present living situation.	S.659	Delete Paragraph Entirely
	S.847	Delete Adverse Effects Language, Add Requirement of Equal Time, Minimum Guaranteed Time Required
	H.1306 & H.2684	Delete Adverse Effects Language Only, Adds Parties are equal, and court should maximize exposure to each so far as practical
	H.1330	Add requirement to consider who is responsible for adverse conditions, and Add requirement for court to consider “rights of parents”
	H.2244	Delete Adverse Effects Language Only, Add Requirement of Equal Time
P7 – Presumption of temporary Shared Legal Custody absent emergency conditions, abuse or neglect (requires written findings for sole legal). No presumption of shared physical custody.	S.659	Add Presumption of Shared Physical Custody
	S.847
	H.1306 & H.2684
	H.1330
	H.2244
P8 – Court shall consider best interest of the child, and all relevant facts, including alcohol or drug abuse, and willingness of parties to cooperate.	S.659	Delete willingness of parties to cooperate as factor
	S.847	Standard for overcoming presumption is greater: “immediate physical or emotional danger” to children
	H.1306 & H.2684	Standard for overcoming presumption is greater: must show child would be harmed by shared custody; Change in availability of a parent or change in developmental state of child shall be sufficient for a Modification
	H.1330	If parties unwilling to cooperate order a dispute resolution plan
	H.2244	Delete willingness of parties to cooperate as factor, Standard for overcoming presumption is greater: must show clear and convincing evidence that parent is unfit.
P9 – Court must make written findings to order shared legal or physical custody if prior or current 209A restraining order.	S.659	Reverse Presumption - Court must enter written findings as to effects of the abuse on the child to not order shared physical custody
	S.847	Deleted
	H.1306 & H.2684	Deleted
	H.1330	Add that denial or vacating of 209A shall be binding and facts alleged therein shall not be used in custody determination
	H.2244	Deleted
P10 – No Presumption of Shared legal or physical custody at trial on merits except under 31A.	S.659	Reversed. Presumption at trial of Shared Legal and Physical custody.
	S.847	Deleted
	H.1306 & H.2684	Reversed. Presumption at trial of Shared Legal and Physical custody.
	H.1330	Reversed. Presumption at trial of Shared Legal and Physical custody.
	H.2244	Deleted
P11-13 – Parties shall submit a detailed shared custody plan and court may accept, modify or reject the plan	S.659	Changed to Parties shall agree and if they do court must accept. If parties cannot agree court may issue its own plan.
	S.847	No Change
	H.1306 & H.2684	Court may only modify or reject the plan if child would be harmed by shared custody; Presumption of shared custody exists even if parties don’t submit proposals
	H.1330	Court may only modify or reject if preponderance of evidence shows that agreement would not be in best interest of children.
	H.2244	Court may only modify or reject if parent is unfit
P 14 – Award of shared legal of physical custody shall not affect a parent’s responsibility for child support and shall not constitute grounds for modification of support.	S.659	No Change
	S.847
	H.1306 & H.2684	Reversed: If Shared Physical Custody is ordered court shall revise child support order
	H.1330
	H.2244
P 15 – Right of Parents to access school or medical records	S.659	No Change
	S.847
	H.1306 & H.2684
	H.1330
	H.2244
P16 – Where parents have agreement court MAY enter it, or make specific findings that such an order is not in best interest of children	S.659	Court must accept agreement, or make specific findings that such an order is not in best interest of children
	S.847	No Change
	H.1306 & H.2684	Court may only modify or reject the plan if child would be harmed by shared custody
	H.1330	Court must accept agreement, or make specific findings of clear and convincing evidence that the order is not in best interest of children
	H.2244	Court must accept agreement

If you are interested in learning more about why we believe that some of these changes are practical and some aren't, read our previous posts evaluating each of the proposals individually. Based on all of these evaluations, we would propose a hybrid of these bills taking the best parts of each as follows:

Current Law	Our Proposal
P1 – P5 Definitions of Custody	No Change
P6 – Rights of Parents held equal absent misconduct. Court shall consider adverse effects of past or present living situation.	Delete Adverse Effects Language Only, Add Parties are equal, and court should maximize exposure to each so far as practical
P7 – Presumption of temporary Shared Legal Custody absent emergency conditions, abuse or neglect (requires written findings for sole legal). No presumption of shared physical custody.	Add Presumption of Shared Physical Custody
P8 – Court shall consider best interest of the child, and all relevant facts, including alcohol or drug abuse, and willingness of parties to cooperate.	Delete willingness of parties to cooperate as factor, Change in availability of a parent or change in developmental state of child shall be sufficient for a Modification
P9 – Court must make written findings to order shared legal or physical custody if prior or current 209A restraining order.	Add that denial or vacating of 209A shall remove any presumption against shared custody, though court may still consider alleged facts.
P10 – No Presumption of Shared legal or physical custody at trial on merits except under 31A.	Reversed. Presumption at trial of Shared Legal and Physical custody.
P11-13 – Parties shall submit a detailed shared custody plan and court may accept, modify or reject the plan	Court may only modify or reject joint plan if preponderance of evidence shows that agreement would not be in best interest of children.
P 14 – Award of shared legal of physical custody shall not affect a parent’s responsibility for child support and shall not constitute grounds for modification of support.	Reversed: If Shared Physical Custody is ordered court shall revise child support order pursuant to the Guidelines
P 15 – Right of Parents to access school or medical records	No Change
P16 – Where parents have agreement court MAY enter it, or make specific findings that such an order is not in best interest of children	Court must accept agreement, or make specific findings that such an order is not in best interest of children

To read more about Shared Parenting in Massachusetts, check out the following pages:


Parenting Plan Worksheet - Use this worksheet to help compare potential or proposed Parenting Plans on a user-friendly calendar.


Child Custody Mediation

Collaborative Child Custody Resolution

Child Custody Litigation