Private Browsing: You don't need Congress' help to protect your privacy.

Two U.S. Congressman recently proposed an Internet Privacy Bill which would require websites to notify clients of all information that the website creates or collects, including cookies, session logs, etc.

Regardless of how this bill fares, it surprises me that so many people are unaware that there is already a way to browse the internet without creating a record. Of course you should avoid providing your information on the internet except to trusted sources, but you may also want to avoid other internet records created simply by browsing a website.

When you browse a website, it may create records within your browser to improve your browsing experience (such as cookies) and it also creates a record in your browsing history. Both of these options can be turned off in browsers, but this could hinder your everyday internet usage.

Instead, when browsing sites that you don't want a record kept for (such as a divorce attorney's website) you can use Private Browsing options available in most browsers. These linked articles describe using Private Browsing in Internet Explorer 8, Google Chrome, Firefox, and Safari.

Does the Staggered Duration Formula for Alimony Mean that Lawyers Will Encourage Potential Clients to File for Divorce?

Hopefully not! However, it does make anniversaries more important than they already are.

Under the Massachusetts Alimony Reform Act of 2011, which becomes officially effective on March 1, 2012, general term alimony will now have a time limit, determined by the length of the marriage.

• For marriages lasting 5 years or less, general term alimony will last no longer than one-half of the number of months of the marriage.
• For marriages lasting more than 5 years but less than 10 years, general term alimony will last no longer than 60% of the number of months of the marriage.
• For marriages lasting more than 10 years but less than 15 years, general term alimony will last no longer than 70% of the number of months of the marriage.
• For marriages lasting more than 15 years but less than 20 years, general term alimony will last no longer than 80% of the number of months of the marriage.
• For marriages lasting more than 20 years, the court may order that general term alimony will last indefinitely.

There are circumstances that would justify a deviation from this staggered scheme, such as the recipient spouse co-habitating with a significant other, and the death of either spouse, and I would encourage you to speak to an attorney if you have questions about the Alimony Reform Act of 2011.

The staggered scheme creates a jump in the duration of an alimony order for each five years of marriage. This creates a dilemma for individuals who are approaching a five, ten, fifteen, or twenty year anniversary and are struggling with whether to seek a divorce. Waiting until after one of these pivotal anniversaries, should their situation be one where alimony is later awarded, would result in paying alimony for a longer period of time.

This puts attorneys in an uncomfortable position. Any respectable family law attorney would never advise or encourage an individual that is struggling with the decision of whether to remain in a marriage and commit to repairing any existing damage to get a divorce. For individuals that come into our conference room for an initial consultation, walking through our door is often one of the most difficult decisions that they have made. It is not the attorney's job to make that decision any more difficult.

The dilemma lies with individuals who are seeking legal advice but have not yet made a final decision as to whether they will file for divorce. Part of our job as attorneys is to inform our clients, and potential clients, what the law is. With the staggered scheme for calculating the duration of alimony, this means that remaining married past a five, ten, fifteen, or twenty year anniversary could result in a longer alimony order.  It is up to the individual whether this is a tipping point for filing, or just a consequence of not yet being sure whether their marriage is over.

How can I Support or Fight the Alimony Reform Act of 2011?

The Alimony Reform Act of 2011 is legislation currently pending in Massachusetts which would significantly change how the Courts here handle alimony cases. The proposed bill would limit the duration and amount of alimony, exclude payor's second spouse income, and end (or reduce) alimony upon cohabitation and retirement.

Of course, these changes are controversial and in many cases favor payors. On the other hand, payors will argue that the current law unreasonably favors recipients.

Whether you are in favor or against the Alimony Reform Act of 2011, if you are a resident of Massachusetts you should make your opinion known. Contact your State Senator and Representative and tell them whether you want them to become additional sponsors or oppose the bill. If you want to know who your representatives are click here. Massachusetts Alimony Reform, an organization in favor of the bill (obviously given their choice of name), has provided a sample letter to send if you also favor the legislation.

To see Denise Squillante, President of the Massachusetts Bar Association summarize the Act on Fox25 News check out this video:

Alimony reform bill: Are changes on the way?: MyFoxBOSTON.com

If you want to read more about the proposed changes visit our last article: The Alimony Reform Act of 2011 or go to MassAlimonyFormula.com.

You can also Comment on this (or our previous posts) by completing the "Post a Comment" box at the end of each article.

Upcoming Seminars and Workshops: Social Security, Estate Planning, and Divorce

The friends of Kelsey & Trask, P.C. are offering some great upcoming seminars and workshops to help members of the public understand their options better when it comes to legal issues. From time to time we will try to let you know about these opportunities. Here are three that we recommend in November:


Social Security and Retirement Planning: Social Security Workshop at Council on Aging

Concord, MA - Senes & Chwalek Financial Advisors is pleased to present Kurt Czarnowski, former New England Regional Communications Director for the Social Security Administration, who will present “Social Security and Retirement Planning” at the Concord Council on Aging on Monday, November 28, 2011 at 6:30 pm.

Social Security's retirement program has been a basic part of American life for more than 76 years. Because we're living longer, healthier lives, we can expect to spend more time in retirement than our parents and grandparents did, and achieving a secure, comfortable retirement is much easier when you plan for your future.

But, despite the age, the size, and the economic impact of the Social Security system, the myths and misunderstandings about what the program is, as well as what it isn’t, are sizable. Social Security benefits were never intended to be someone’s sole source of income. Instead, they should be seen as the foundation on which to build a secure retirement.

Mr. Czarnowski worked for the SSA from 1976 until his retirement in 2010. As Regional Communications Director, Czarnowski was responsible for coordinating the Social Security Administration’s public affairs/public information activities in the six New England states. In this role, he was a frequent speaker at local and regional events for members of the public, and in 2010, he was the featured presenter on “Social Security: Your Retirement Planning Questions Answered,” the Social Security Administration’s national webinar for financial service professionals. He will provide an overview of the Social Security program and will help attendees better understand the important role it plays in achieving their retirement dreams.

Senes & Chwalek Financial Advisors is located at 57 Main Street, Concord. Renee W. Senes and David Chwalek are registered representatives of Investors Capital Corporation, Member FINRA/SIPC. For more information, please contact them at 978-369-2255.


Peace of Mind Planning for Parents Workshop

Hingham, MA - By popular request, Attorney Danielle G. Van Ess, will be repeating her Peace of Mind Planning for Parents workshop in just a few short weeks on Wednesday, November 16, 2011 from 7:30-9pm in Hingham.

If you missed the last one, here's your opportunity to attend. If you have friends who might be interested, please share this with them through email, Facebook, or however you reach them!

Registration is required, attendance is limited, and where applicable, both spouses are strongly encouraged to attend together. So line up your babysitters now and write down some questions you want to ask her.

You can learn more details about the workshop and register online here: http://peaceofmindforparents.eventbrite.com.


Divorce in Massachusetts: A 4-Part Weekly Public Education & Discussion Seminar Series

Needham Beth Israel Deaconess Hospital – Cardiology Conference Room - 148 Chestnut Street, Needham, MA 02492

Nov. 8, 2011 – Dec. 6, 2011; Tuesdays from 7:00 P.M. to 9:00 P.M.

FREE – ($20 per session suggested donation)

Who is the Seminar for?

This 4-Part Seminar Series is intended for people contemplating or going through a separation or divorce. Our members, including attorneys, therapists, mediators, and financial experts will provide you with valuable information about the divorce process in Massachusetts. There is the opportunity for Questions and Answers after each session.

What will you Learn?

Session I – The Divorce Process - Tuesday, November 8, 2011 7-9PM

- Where and how to begin:
- What needs to be filed and where?
- What is Mediation?
- What is Collaborative Law?
- How do I find the right professionals?

Session II – Finances, Assets & Alimony - Tuesday, November 15, 2011 7-9PM

- What is marital property:
- What is an equitable division?
- How do taxes affect the process?
- Will my House be sold?
- What is a QDRO?
- What is alimony?

Session III – Children & Divorce - Tuesday, November 29, 2011 7-9PM

- How much will child support be?
- How long will child support be paid?
- What is a Guardian Ad Litem?
- How do I create a parenting plan?
- What does custody mean in court?
- How do I minimize the trauma on children?

Session IV – After Divorce - Tuesday, December 6, 2011 7-9PM

- How do I get through the Divorce?
- What are some coping strategies?
- Can a divorce judgment be modified?
- How do I enforce the judgment?

REGISTER ONLINE

Probate & Family Court Amends Procedures for Post-Hearing Motions

Standing Order 2-99 of the Massachusetts Probate and Family Court governs the proper procedures for submitting post-hearing Motions to the Probate and Family Court.  Per the Court's recent Press Release, amendments to this Standing Order, which took effect on July 2, 2012, clarify what types of motions may be submitted in these situations.

It had become common under the old version of the order for parties to file a Motion for Reconsideration or a Motion for Clarification after receiving an unfavorable Judgment or Order after a hearing in the Probate and Family Court.  The old rule made specific reference to these types of Motions.    However, there is no specific Massachusetts Domestic Relations Procedure Rule that allows for Motions for Reconsideration or Motions for Clarification specifically.  Under Massachusetts Domestics Relations Procedure Rule 60 a Motion for Relief from Judgment and Order may be brought, but only for very specific reasons.

The amendments to the Standing Order delete references to Motions for Reconsideration or Clarification and clarify that no new rights for relief are created by the Standing Order.  The Standing Order is only intended to set out the procedures by which relief pursuant to the Domestic Relations Procedure Rules may be sought.

View the changes to the Standing Order 2-99 highlighted here.

Divorce in Massachusetts: 5 Things You Need to Know to Get Started

There are five questions you will need to answer to get started with a divorce in Massachusetts:
1. CAN you file for divorce in Massachusetts?
2. WHY are you getting divorced?
3. HOW will you get divorced?
4. WHO can help you get divorced?
5. WHERE will you get divorced?

We answer each of these questions below:

1. CAN you file for divorce in Massachusetts?
If you have been a resident of Massachusetts for one year then you can file for divorce in Massachusetts. Even if you have not been a resident for one year, you still may be able to file for divorce in Massachusetts but it may be complicated to determine.

We created an infographic to clarify the confusing question of jurisdiction over a divorce case in Massachusetts by consolidating the statutes and case law into one chart available here: Can I file for divorce in Massachusetts? An Infographic.

Just because you can file for divorce in Massachusetts, however, does not necessarily mean the court has jurisdiction over all issues in your case, as we explain in greater detail here: Can I be sued for Divorce in Massachusetts if I don't live there but my spouse does?. If your case involves residency, property, or children living in multiple states, you should definitely consult with an attorney because these issues can present complicated determinations and possibly multiple court cases.

If you have determined that you can file in Massachusetts, you now have to answer:


2. WHY are you getting divorced?
There are three different statutes in Massachusetts that provide grounds upon which the Probate & Family Court can grant you a divorce.

The Fault Statute: M.G.L. ch. 208 § 1 authorizes the Courts in Massachusetts to grant divorces to residents of Massachusetts for a specific list of "fault" situations: adultery; impotence, desertion continued for one year; gross and confirmed habits of intoxication caused by voluntary and excessive use of intoxicating liquor, opium, or other drugs; cruel and abusive treatment; imprisonment; or, if a spouse being of sufficient ability, grossly or wantonly and cruelly refuses or neglects to provide suitable support and maintenance for the other spouse.

These are called "fault" divorces because obtaining a divorce for any of these reasons requires that you first prove that one spouse has caused the divorce by doing one of the things listed, i.e. it is "their fault" that the marriage has broken down.  It is unusual under the current state of Massachusetts law to file for "fault" divorces because they require this extra evidence of fault before a divorce can be granted.

The No-Fault Statutes: M.G.L. ch. 208 § 1A and M.G.L. ch. 208 § 1B authorize the Courts in Massachusetts to grant divorces to residents of Massachusetts for "an irretrievable breakdown of the marriage." The irretrievable breakdown standard simply requires that the Court find that at least one of the parties in the marriage believes (subjectively) that their marriage is over and that there is no chance of reconciliation.

If you are filing for a No-Fault Divorce (the most likely option) then you may not have to litigate your case.  There are other (oftentimes better) options for:


3. HOW will you get divorced?
There are four paths you can take to get divorced: Direct Settlement Negotiation, Litigation, Mediation, or Collaborative Divorce.  We created an infographic to help you visualize the different tracks you can take, and how you might end up moving from one track to the other (as well as some of the waypoints along the way):  The Divorce Roller-Coaster: An Infographic of Options.

Each path has strengths and weaknesses and we examined some of these in the following posts:

Mediation, Collaborative Law or Litigation: What's your Vote?

The Cleavers Divorce: A Mediation

The Huxtable's Divorce: A Collaborative Divorce

The Honeymooner's Divorce: A Litigation Case

To learn more about the pros and cons of each option visit our: Litigation site, Mediation site, or Collaborative Divorce site.

Regardless of which of these paths you believe is best for your case, you will likely benefit from some help:


4. WHO can help you get divorced?
An attorney can help you with all of the steps in the divorce process. An experienced Massachusetts divorce attorney can answer or help you answer all of the questions raised at the beginning of your case (as covered in this post); help guide you through the process that you choose; assist you in drafting necessary documents, negotiating and presenting your case; and prepare and explain any settlements in your case. You can hire an attorney to help you with all of these elements of your case, or just parts of your case (through Limited Assistance Representation).

In addition, whatever path you choose to get divorced, there are many instances where other professionals can assist in moving a case forward and reduce the cost spent on attorney's time as described in our post: Besides an Attorney, what professionals might be involved in my Divorce case?

And finally, even once you've answered the who, what, why and how, you still need to know:


5. WHERE will you get divorced?
In Massachusetts, the county that you file for divorce in is controlled by M.G.L. c. 208 s 6. You should file in the probate court in the county where either you or your spouse lives, unless one of you still resides in the county where you last lived together, in which case you should file in that county. For clarification on how to apply these rules, and to read about two exceptions to the rules, read this post: What County do I File my Divorce in? Click here for Directions and Phone Numbers to the Probate & Family Courts in each county.

Will My Court File be Made Available to the Public?

Many of our clients or potential clients are concerned about whether their court records will be made available to the public. In most instances court records are available to the public, with some limited exceptions. This includes the contents of case files, pleadings and motions. In family law (divorce, paternity, guardianship) cases some materials are not public, such as findings of non-paternity in a paternity suit. In addition you can request that certain information be impounded such as an individual's address (impounded by the judge "upon good cause shown" -- which may be harder to show than one might imagine). Additionally, family law case files automatically impound some materials, such as financial statements, child support guideline worksheets, and reports of a guardian ad litem, probation officer or court clinic.

Practically speaking, the availability of the public portions of your case file does not necessarily mean that any member of the public will actually see what is inside. It simply means that if anyone specifically wanted to see it, and was motivated enough to find and travel to the right courthouse, they could see it. Although this may happen, it rarely does.

For more information on the availability of court files, I suggest reading "A Guide to Public Access, Sealing & Expungement of District Court Records."

And It's All Your Fault! MA "Fault" Based Divorce #5: Refusal to Provide Suitable Support

Technically, one can seek a divorce from a spouse by pleading that their husband or wife has "grossly or wantonly and cruelly refuses or neglects to provide suitable support and maintenance." This ground for "fault" divorce has a companion action: an action for separate support. However, a complaint for separate support only deals with support payments, and does not provide for the division of assets and the dissolution of a marriage, as this rarely-used ground for divorce does.

This ground for "fault"-based divorced is rarely used for a few reasons. First, there is no advantage gained when compared to a "no fault" divorce. Second, proving that your spouse has either grossly or wantonly and cruelly not provided suitable support is a very difficult. Simply putting one spouse on a very limited allowance or refusing to allow access to bank or credit card statements doesn't meet this evidentiary burden. You also have to prove that the spouse who has allegedly refused or neglected to provide suitable support actually has "sufficient ability" to provide support. This needs to be an intentional (and I would argue complete) economic abandonment.

When dealing with alimony and the division of property, any divorce action claiming that one spouse has grossly or wantonly and cruelly refused to provide suitable support and maintenance, or one filed on "no fault" grounds but with identical facts, will likely have a motion for temporary orders filed soon after the complaint seeking temporary alimony payments.

QUESTION OF THE WEEK: Why do divorces get so contentious?

One Lawyer's Opinion: Last week, I was having a casual conversation about settlement of divorce cases, and commented: “each side chooses their weapons. The husband will use custody to push the wife’s buttons; the wife will use financial issues to push his. Wind blows, fire burns. It’s just the way it is.”
I don’t think there are any lawyers or clients out there that openly admit to following this playbook. Kids are people, after all, not the wedding china, the plasma TV, a 401K or the myriad of other things that family law attorneys use to equitably divide assets during a divorce. Still, my recognition and arguable acquiescence to “the way it is” proved problematic to my preferred practice model.
Where does this assumption come from, then?
While I don’t use this strategy to leverage a settlement, it is still prevalent in practice, so much so that I subconsciously admitted that that was inherent to divorce and family law practice. The answer, it seems, would be more complex. Certain biases are ingrained in all of us and show when the emotions of divorce, litigation, and the ultimate fear of loss causes us to shed our talents for rational analysis and appeal to our more basal "fight or flight" responses. In effect, we "go for the jugular", and hit the other side where it will hurt the most.
I’m not saying the traditional wage-earning parent cares less for the children, or vice versa. Rather, the "money-versus-custody" mindset plays on the biases regarding the traditional wage earner vs. caregiver roles. Divorce forces the parties out of their individual role in the family and forces each side to accept new responsibilities; to a certain degree, each parent is now a caretaker and a wage-earner.
At its lowest common denominator, these claims are usually not a fight over money or children, but a fight over identity and what makes each of us who we are. The emotional threat (or fear) of taking away purpose or identity is the biggest stick any of us can wield, and not surprisingly, it can make any process far more contentious than necessary. We (both attorneys and clients) should be aware of it, prepare for it, and most importantly, provide clients with the peace of mind to know that although the climb might be difficult, the views from the summit are pretty good.

Check out these fun sites:

It's time for a lighter, more fun blog post. Check out these sites/stories which we hope will add a little amusement to your day:

Husband who tries to avoid divorce proceedings by claiming the marriage ended when he died. Yes you read that correctly.

Canadians are trying to kill us with health care reform. Don't worry it's tongue in cheek, and very very funny.

Take a virtual tour of the Kelsey & Trask, P.C. offices in Natick. Now you'll know your way around when you come to visit.

What happens to payments owed to an ex-spouse in Bankruptcy?

Obligations that are considered by the Bankruptcy Court to be “domestic relations orders” are non-dischargeable and priority debts. They are defined in U.S. Bankruptcy Code Title 11 Section 101 14(A).

In summary, the term 'domestic support obligation' includes child support, alimony, or other support payment, and can include payments for housing, health insurance or other costs paid on behalf of a spouse or ex-spouse. If payments are owed and in arrears then the 'domestic support obligation may also include interest and the interest is non-dischargeable as well.

It is very important when preparing a Chapter 7 Bankruptcy to be aware that these debts will not be discharged, i.e. will still be owed after the bankruptcy.

It is likewise very important when preparing a Chapter 13 Bankruptcy to be include the 'domestic support obligation' in the Chapter 13 plan as a priority debt and to be clear about how arrears will be paid versus how the ongoing payment reduces the filer's available income. If these issues are not addressed specifically, the Bankruptcy Court may find that the Plan is not binding against your ex-spouse as was the case in In re Owen, 2009 WL 693161 (Bky.E.D.Tenn. March 13, 2009). For an excellent explanation of what happened in that case check out the following article on the Bankrutpcy Law Network: "Stealth" Plan Provisions: Confirmation of Chapter 13 Plan Did not Alter Domestic Support Obligation".

Is there a Criminal Record of a 209A Restraining Order?

If you are served with a Complaint for Protection from Abuse (sometimes referred to as a 209A Restraining Order because of the statute: M.G.L. c. 209A) then your name and the Complaint are recorded in the Domestic Violence Record Keeping System which is visible to Judges and law enforcement officials (and certain airport personnel) through CARI (Court Activity Record Information), a subset of CORI (Criminal Offender Record Information).

There is presently no statutory provision in Massachusetts allowing these records to be expunged.

This is explained in greater detail in a Massachusetts Bar Association article which indicates that the Mass Bar proposed an amendment to the statute, mandating expungement of the record when the Order was vacated at the first hearing (after being issued on an ex parte hearing, which most 209A Orders are initially). Unfortunately, this legislation was not enacted by the legislature, and today the law remains that there is no statute allowing these records to be expunged.

In Vaccaro v. Vaccaro a Husband requested via Motion that the record be expunged in the statewide system after a Judge found insufficient facts to justify extension of the Order, but the Supreme Judicial Court overturned the expungement because there is no statutory authority to expunge the record. Vaccaro v. Vaccaro, 425 Mass. 153, 680 N.E.2d 55 (1997)

In Commissioner of Probation v. Adams the Court did allow a record to be expunged, distinguishing the circumstances in that case by stating “a judge has the inherent authority to expunge a record of a 209A order from the Statewide domestic violence registry system in the rare and limited circumstance that the judge has found through clear and convincing evidence that the order was obtained through fraud on the court.” In that case “fraud” consisted of a calculated pattern of nineteen false and perjurious statements. Commissioner of Probation v. Adams, 65 Mass. App. Ct. 725, 730, 843 N.E.2d 1001 (2006)

In Noble v. Noble the Appellate Court (quoting Rockdale Mgmt. Co. v. Shawmut Bank, N.A., 418 Mass. 596, 598, 638 N.E.2d 29 (1994)) further defined a “fraud on the court” as when it can be “demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense.” Noble v. Noble, 75 Mass.App.Ct. 1121, 909 N.E.2d 59 (2009)

Unfortunately, this means that in most cases where a 209A Restraining Order is vacated at the first hearing, it is still unlikely that the Defendant can get the original Order expunged from their record. The Courts have stated that this reflects a legislative intent to give the Courts and police as much information as possible when dealing with domestic violence situations. Unfortunately, as is often the case, this information can cost an innocent person their rights, even if they were falsely accused (but can't meet the burden of proving fraud).

5 Worst Divorce Mistakes - MISTAKE #2: "All of this is because of that slut!"

MISTAKE #2: FLAUNTING OR FOCUSING ON THE BOYFRIEND/GIRLFRIEND

Many divorces begin with the discovery of an affair. Whether or not this is the true cause of the divorce is not as important of a fact as it used to be, especially in a no-fault divorce state like Massachusetts. Regardless, the introduction of a third person into the complicated dynamics of divorce can still make the process much more difficult, often causing the parties to focus on the emotions involved in a divorce instead of the practical breakup of the business partnership.

Two of the most common ways that a new significant other can complicate a divorce case can be easily avoided. The first is when one party focuses all of their energy and anger over the divorce on the significant other. They want the significant other to be deposed and made a witness, even if the value to the case is minimal. They convince themselves that the new person is the cause of the divorce (rather than a symptom). This misplaced focus can take up hours of your attorney's time (at significant cost) and take focus away from the assets and income that need to be inventoried and divided. Even worse, this unhealthy focus usually leads to wanting my "day in court" to establish who are the "wrongdoers." See Mistake #5 for a description of why this can lead to disaster.

Although, being hurt or angry is natural, focusing on the significant other as the source of your problems is not constructive. If you are caught up in this cycle then we encourage you to get professional help dealing with these strong emotions, such as therapy. Lawyers are not trained to help you work though your emotions, and you should consult with a professional who has that training. Then you can focus with your legal team on the legal issues such as the practical financial considerations and setting your goals for the future.

The second common way that parties can involve significant others inappropriately in a divorce case, can often lead to the over-focusing described above. I call this mistake "flaunting" the new relationship. Some parties will insist that their new boyfriend or girlfriend accompany them to court hearings, or discuss them unnecessarily in front of the ex-spouse. These actions are not only hurtful, but often downright inflamatory. Worst of all, they are almost always completely unnecessary. Especially when a new relationship is young, there is no need for that third party to be involved in your divorce case. Encouraging them to be involved only increases the likelihood that emotions will stay high and your case will drag out needlessly.

Click here to view Mistake #1.

Can I obtain an Annulment?

Annulments and Divorces both accomplish the same result, that being the end of a marriage, however the reasons for getting an annulment and the reasons for getting a divorce differ significantly. A divorce will end a marriage because of something that happened during the marriage, whether that is infidelity, abuse, an inability to communicate, irreconcilable differences, etc. An annulment will end a marriage because of something that preexisted the marriage itself. In other words, because of something that existed at the time of the marriage, an annulment will end the marriage, or treat it as if it did not exist.

There are two categories of marriages that may be annulled: "void" and "voidable." A "void" marriage legally never existed. The law approaches these marriages as so repugnant that to end it would treat it as if it actually existed. This usually means you were not legally able to get married in the first place. In Massachusetts, a marriage is "void" if the individuals are too closely related (either by blood or marital relationship, such as a woman and her stepfather), or because the husband or wife was still married to another person at the time of the marriage (the law does not allow you to have more than one spouse).

In Massachusetts, a "voidable" marriage is treated as perfectly valid until there is a court order declaring that it is invalid. This is done through a Complaint for Annulment. In Massachusetts, examples of "voidable" marriages are as follows: when one spouse lacked capacity to marry (such as a marriage to a minor without consent of parents or a judge), one spouse was impotent (this concerns the ability to engage in intercourse, not fertility), the marriage was the product of fraud, or one spouse was intoxicated to the extent that he or she did not have the capacity to consent to the marriage.

Should you have further questions about whether you qualify for an annulment, contact Attorney Justin L. Kelsey, or call 508.655.5980 to schedule a free one-hour consultation.

What do I do if my ex threatens to take our child out of the country?

If a parent wants to move a child's residence out of the country, then the same laws apply as when the parent wants to move to another state, though the evaluation by the Court may be slightly different. The removal statute is discussed at length in our previous blog: What do I do if my ex wants to move out of state with our child?.

If you are afraid that the other parent may remove the child illegally and once the child is out of the country it may be difficult to get them back, then there is still something you can do. The U.S. Department of State has a website entitled Child Abduction Prevention with many useful tips including:

1. Be aware of your state's laws relating to removing the child from your state against the other parent's wishes. This is a crime in most states and may also be a federal crime.

2. Obtain a custody order that clearly defines both your and the other parent's rights relating to the child and any limitations on those rights.

3. Be aware of U.S. Passport law, which requires the signature of both parents to obtain a passport for a child. If you are concerned that your ex might try to obtain a passport without your signature or with a forged signature, then you should apply to The Children's Passport Issuance Alert Program. You can obtain the entry form by clicking here.

4. If your child already has a passport you can ask the Court to require its surrender.


Thank you to Robert P. Schneiders, Esq. of Canton, MA for forwarding us this information on The Children's Passport Issuance Alert Program.