Post-Divorce Problems: My Ex is Doing Better than Me

While our last post explored what happens when your ex violates the Divorce Judgment, what happens if everyone is following the agreement perfectly, but one of you has clearly got an advantage?

A common complaint that potential clients express to us is a dissatisfaction with their prior agreement or judgment because their ex-spouse seems to be doing very well.  They might have a bigger house, or take a lot of vacations, or have a really nice car.  In some cases this is a legitimate indicator that a support order may not be fair, and in those cases a Complaint for Modification may be warranted (our next few posts will address when this is appropriate).

However, many times this imbalance reflects something which can’t be fixed by a Complaint for Modification.  In some cases exes have not fully accepted the divorce yet, and comparing your lifestyle to your exes is an indication that you haven’t yet moved on.    Even with a well-crafted agreement your life is unlikely to turn out exactly equal to your exes.

Many couples divorce because they have different views on finances and in these cases usually one spouse is good at budgeting and the other is not.  Divorce doesn’t change these habits, and a spender will still be a spender and a saver will still be a saver.  A few years after a divorce, these different habits will become evident in the lifestyle of each ex-spouse.  One of the consequences of separating your finances in the divorce is to give each person the chance to fail or succeed on their own, and if your ex has succeeded because they manage their finances better you have no legal (or moral) right to gain an ongoing benefit from that success.

In other cases, the imbalance that has been created is due to poor choices that were made at the time of the divorce.  Both you and your ex-spouse may be equally good at budgeting, but if you made poor financial trades in your property division then you may be feeling the consequences of that now.  For example if you were divorced in 2004 (prior to the housing market crash) and you took house equity in exchange for your spouse taking other assets, then you probably lost out on that deal.  Your ex might still have close to their original value of assets, while you are left with little to no home equity.

I have often tried to explain to divorcing clients that trading one type of asset for another often has both tax consequences and risk/benefit consequences.  Pinning one’s hopes in the housing market for their retirement is not always the best idea (especially not right now).  However, many people still choose to trade different types of assets, in order to meet a non-financial goal, such as being able to stay in their home.

Once a property division is completed, these types of decisions, and their consequences, cannot be revisited.  The importance of understanding your property division and its potential consequences is one of the most important reasons to consult with good legal counsel, and oftentimes with financial planning experts as well.

Click here to learn more about crafting appropriate Divorce Agreements.

M.G.L. 93H and Data Privacy Basics

Massachusetts has enacted one of the strictest data-privacy laws in the country and is scheduled to go into effect on March 1, 2010. Any personal information that any business entity maintains or stores is subject to Massachusetts General Laws Chapter 93H, while M.G.L 93I governs the destruction of physical and electronic documents and data. Both M.G.L. 93H and M.G.L. 93I define “personal information” as a person’s last name and either his or her first name or first initial, combined with any one of the following: a social security number; driver’s license number or state-issued identification card number; financial account number, debit or credit card number, with or without any required security code, access code, personal identification number or password that would permit access to a resident’s financial account.

Guidance for business’ implementation of M.G.L. 93H can be found in 201 CMR 17.00, and creates an affirmative duty to every person that “owns, stores or maintains personal information about a resident of the Commonwealth” to “develop, implement, maintain and monitor a comprehensive, written information security program applicable to any records containing . . . personal information.” In determining whether such comprehensive security program complies with M.G.L. 93H and accompanying 201 CMR 17.00, a court will consider:
(a) the size, scope and type of business of the person obligated to safeguard the personal information under such comprehensive information security program;
(b) the amount of resources available to such person;
(c) the amount of stored data;
(d) the need for security and confidentiality of both consumer and employee information.

Any business must have a written information security program (“WISP”) that establishes security policies for the firm’s computers and wireless system, and all personal information contained therein. All personal information stored on laptops or “other portable devices” must be encrypted. All records and files, including emails, containing personal information that is transmitted across public networks or wirelessly must be encrypted “[t]o the extent technically feasible.” The written security program must include plans for systems monitoring for unauthorized use, up-to-date firewall protection, and up-to-date system security software that is set up to receive regular security updates.

Authentication protocols must include a “reasonably secure method of assigning and selecting passwords.” 201 CMR 17.04(1)(b). Assigning random complex passwords to clients would be a preferable defensive strategy. Such passwords must be controlled “in a location and/or format that does not compromise the security of the data they protect.”

With that in mind, businesses should develop a policy which includes:
(a) Encryption of all emails that contain personal information.
(b) Encryption of all personal information stored on portable devices
(c) Installation of system security agent software that is set up to receive security updates
(d) Maintenance of firewall protection for all files on a system connected to the internet.
(e) Implement a termination/Disciplinary policy for misuse of personal information.
(f) Education/Training of employees on proper use of computer security system and importance of personal information security.

Attorney Trask of Kelsey & Trask, P.C. was a cryptologic materials manager in the U.S. Marines, and has experience planning and implementing encrypted communications (voice and data) networks. If you have any questions regarding M.G.L. 93H, contact us at (508) 655-5980 or click here.

Scaling the Summit Word Cloud

Wondering what we've been writing about. Below is a word cloud generated by Wordle displaying our most written about subjects:

What will happen to Trust assets in my Divorce?

According to this recent Daily Mail article, Athelstan Whaley, a millionaire hotel tycoon will be left practically penniless by a UK divorce court's order. Whaley claims that the main source of his wealth, a family trust, cannot be accessed to pay for his divorce settlement, despite the fact that the Judge took the trust into account when calculating the divorce payout. In order to pay the settlement, he will have to use all of his liquid assets including selling his house, and claims that this will make him homeless. While it's hard to feel bad for a millionaire, a family trust could put any divorcing spouse in this position.

In Massachusetts the division of marital property in a divorce case is controlled by M.G.L. Chapter 208 Section 34, which states in pertinent part:

"In addition to or in lieu of a judgment to pay alimony, the court may assign to either husband or wife all or any part of the estate of the other, including but not limited to, all vested and nonvested benefits, rights and funds accrued during the marriage and which shall include, but not be limited to, retirement benefits, military retirement benefits if qualified under and to the extent provided by federal law, pension, profit-sharing, annuity, deferred compensation and insurance."

This means that the Judge in a divorce case can consider how to divide all property that is in the name of either person, and this includes property held in trusts. Whether or not a trust is divisible as a marital asset depends on the type of trust and how it may have been used during the marriage.

In Ruml v. Ruml the court indicated that a trust could be martial property, especially if it was accessed during the marriage. Ruml v. Ruml, 50 Mass. App. Ct. 500, 512 (2000). In Ruml, the court elaborated that “trust assets where a spouse holds powers, such as the power of appointment of trustees, are subject to equitable distribution pursuant to M.G.L. c. 208 §34. Id.

In some instances, though, the beneficiary does not have any powers, and it is completely up to the trustees to decide how and when the property will be distributed. These are called spendthrift trusts and they may be protected in a divorce if the trust truly has been treated as a spendthrift trust.

"Trusts containing spendthrift provisions of the type under consideration in this case are recognized as valid in Massachusetts." Pemberton v. Pemberton, 9 Mass. App. Ct. 9, 19 (1980) "Moreover, in Massachusetts the settlor's intent to deny creditors of a beneficiary recovery against trust assets or recovery against the trustee's wishes has been accorded particular deference, even in the face of strong public policy arguments favoring such a recovery.’ Id. at 20. Although some scholars suggest limited authority to allow wife and dependents to pierce a spendthrift clause, there is little authority which allows a court to order a trustee to do so over the objection of the trustee. Id. See footnote 10 and 11.

The Judge in a divorce case could award other assets to offset the value of trust proceeds to one spouse, but according to Pemberton if the trust hasn't been invaded during the marriage and is a spendthrift trust than a Judge cannot order the trustees to pay assets to the beneficiary's spouse against the intent of the trust.

I've hired a Collaborative Attorney, how do I convince my spouse to hire a Collaborative Attorney too.

Collaborative Law has many advantages over litigation. It is usually far less expensive than going to trial.  When you go to court, much of your attorney's time will be spent on court strategy or on waiting to be heard in Court. Collaborative Law can help you avoid the backlog in the courts, allowing for a more expedient resolution.

In addition to these practical concerns, though, Collaborative Law offers something that the Courts do not offer: the chance to resolve your case on your terms. If you are unable to settle your case in Court a Judge, essentially a stranger who will only meet you for a very limited period of time, will make major decisions about your life. Collaborative Law is your opportunity to make these decisions together. After all, who knows what is better for you and your family than you do.

Instead of trying to convince your spouse of these advantages, we suggest that you simply request that your spouse interview an attorney who is trained in Collaborative law.  This will help them understand all of their options whether or not they choose to proceed with that attorney or the Collaborative process.  Let your spouse's attorney explain the benefits of the process.  A list of attorneys who have been trained in Collaborative Law in Massachusetts is available on the MCLC website.

Alternatively, if your spouse has shown reluctance to speak to an attorney first, you could also suggest that they speak to a Collaborative Coach.  A coach can also explain the Collaborative process and may be less intimidating than speaking to an attorney.  A list of coaches who have been trained in Collaborative Law in Massachusetts is available on the MCLC website as well.

In addition it might be helpful to tell your spouse where they can read more about Collaborative law online.  Click here to read more about the advantages of Collaborative Law or visit the MCLC website.

Finally, the MCLC Metro West Practice Group has created a brochure to help people considering the Collaborative process.  Contact Attorney Kelsey to obtain copies of the MCLC brochure.

And It's All Your Fault! MA "Fault" Based Divorce #4: Intoxication

In order to prove this "fault"-based ground for divorce, you need to convince the court that your spouse has "gross and confirmed habits of intoxication caused by voluntary and excessive use of intoxicating liquor, opium, or other drugs." The potential benefit of filing for divorce on this ground is to highlight the issue of drug or alcohol use which could also be relevant to any custody arrangement for children.

This is not to say, however, that a court would treat a case filed on "no fault" grounds any differently if one parent has an addiction that might affect his or her ability to care for the children. If custody is contested, the court will have to look at both parents to determine what is in the best interests of the children, regardless of whether the case if filed as a "no fault" divorce or a "fault"-based divorce. Because of this, along with the difficulty of proving a "gross and confirmed habit of intoxication," this ground for divorce is rarely used in favor of "no fault" divorce.

If my ex-spouse files for Bankruptcy, can they discharge support they owe?

We recently posted this answer on our Bankruptcy Blog and thought that it could be useful to our family law audience as well.

Under the current Bankruptcy Code, a debtor who files a Chapter 7 bankruptcy will not receive a discharge from debts defined in paragraph 5 of 11 U.S.C. § 523(a) as "domestic support obligations" or debts under 11 U.S.C. § 523(a)(15) owed "to a spouse, former spouse, or child of the debtor and not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, or a determination made in accordance with State or territorial law by a governmental unit."

"Domestic support obligations" are defined by 11 U.S.C. § 101(14A) as debts "in the nature of alimony, maintenance, or support" owed to a spouse, former spouse, or child.

These limitations on dischargability therefore apply to both child support and alimony, as well as other potential obligations under a divorce decree, such as agreements to pay joint debts or obligation to pay an ex-spouses attorney fees.

If your ex-spouse does file for bankruptcy, you may need to file responsive pleadings and argue this issue in front of a Judge if the debtor seeks to discharge the debt. If you fail to dispute the discharge, that could result in the debt being discharged. Though this is very unlikely, if you are not sure how to protect your rights you should consult with an attorney.

I'm Separated, Why Should I get Divorced? - Reason #4: Remarriage

Reason #4 Not to Wait: Remarriage

Almost every client who consults with us about divorce indicates they have no intention of getting remarried. And who can blame them for saying that when in the middle of a divorce? But the statistics say otherwise. Most people will get remarried after a divorce, and if you are separated and meet someone you want to marry, you will now have to wait for your divorce process to be complete. You can't simply get remarried like Richard Barton Jr. of Grand Rapids, Michigan, who was charged with Bigamy for getting remarried before being divorced (and who got caught because he was dumb enough to post his new marriage photos on Facebook).

Divorces can take years depending on how complicated the issues are and how much either party wants to fight. If you meet someone new will they want to wait that long? Will you? And how will having this third party involved in your life affect your finances (which can be discussed in court)?

If you don't want to face these problems, then consider what you are waiting for if you know your marriage is over. If there is no chance of reconciliation, then there are some pretty good reasons to move on with your life.

Just An Average Day in Court (Video)

It's important to remember that no matter how difficult a divorce is, life always goes on. That's why we sometimes like to post items that show the lighter side of life (hopefully without making light of a difficult time).

We hope you enjoy this court-themed remake of the popular YouTube video, Jill & Kevin's wedding entrance dance:

Massachusetts House of Representatives to Vote on CORI Reform

On Wednesday, May 26, 2010, the Massachusetts House of Representatives will vote on legislation to reform Criminal Offender Record Information (CORI) laws (House No. 4703).

According to the MBA "The purpose of CORI reform is to better facilitate the rehabilitation of offenders back into society and thereby increase public safety. We support efforts to correct some of the unfairness and injustice which occurs by the continued presence and use of inaccurate CORI. CORI laws need to be revised to provide our citizens with greater accuracy, earlier sealing of records and greater clarity in the reports."

The Massachusetts Senate has already passed sentencing legislation that included similar CORI reform and passage of the House Bill will result in a committee being formed to iron out the differences between the two bills (the next step towards having the legislation enacted).

These reforms to the CORI system are supported by the MBA and you should call your state representatives and ask them to vote in support of this bill on Wednesday, May 26 at 11am.

To find who your Rep is, go to www.wheredoivotema.com or call 1-800-462-VOTE (8683) and enter your address.

Why Are More Couples Choosing Divorce Mediation?

Courts in Massachusetts are backed up, always have been backed up, and will presumably be backed up for the foreseeable future. Because of this, divorce cases can often take over a year to complete, and the time that is actually spent in court can feel rushed due to the number of other cases. All too often a decision is made by the court leaving one spouse feeling as if he or she did not get a chance to tell the full story.

Mediation provides an opportunity for divorcing spouses to discuss the process of their separation in a more personal and private forum than in a court room, often times saving the divorcing couple thousands of dollars by avoiding expensive litigation. Divorcing spouses are able to speak to one another in the presence of the mediator, and deal with issues that a court might not want to spend too much time on.

Attorney Justin Kelsey brings his experience as a family law attorney with him into mediation in order to provide divorcing spouses with useful feedback regarding the legal issues of divorce. If mediation is successful, both divorcing spouses can go to court with a separation agreement drafted by the attorneys at Kelsey & Trask, P.C. to be reviewed by the judge before entering it as a judgment. If you and your spouse have decided that you want a divorce, but would like the process to be handled carefully and privately without having to spend a fortune and put your life on hold for years as the court process plays out, or if you have any questions as to how divorce mediation works, call attorney Justin Kelsey to schedule a free one-hour consultation at 508 655-5980.

5 Worst Divorce Mistakes - MISTAKE #4: "Do I have to tell the court about EVERYTHING?"

MISTAKE #4: FAILING TO MAKE FULL DISCLOSURE

Another costly mistake that many parties make in divorce cases is failing to disclose all of their assets or debts. As we have previously stated, divorce is about the break-up of a business partnership. If we don't know what went into the partnership, how can we split it up appropriately and completely.

Whether through laziness or deceitfulness, parties often fail to put all of their information on their Rule 401 Financial Statement. Financial Statements, however, are signed under the pains and penalties of perjury as TRUE, ACCURATE, and COMPLETE statements of all of your income, expenses, assets and liabilities. The consequences of lying or filing an incomplete Financial Statement are significant, and could include a Judge finding you to be an unreliable witness at trial (i.e. take all relevant testimony from your spouse only). In addition, if a settlement is reached in your case and it is later discovered that a particular asset was left off your Financial Statement, the settlement could be voided for fraud, and that asset awarded to your spouse.

Not taking the form seriously is such a typical mistake that one of the most common ways that a lawyer will cross-examine a party in a divorce case is to compare different financial statements filed during the course of the case. Carelessness often leads to inconsistencies that can make you look like a liar.

Even worse, parties that think that they can hide assets, are often found out. Not only is all of their testimony suspect from that point on, the Judge is then highly motivated to award an uneven share of the known assets to the other party in the event there are other hidden assets.

In short, take the Financial Statement seriously and don't lie. Full disclosure is the key to a reasonable and quick settlement. Failure to disclose will almost certainly ensure drawn out and expensive litigation.

Click here to view Mistake #3.

Can you Go to Jail for Bringing Your Child to Church?

Getting divorced doesn’t always mean the end of a relationship. When parents of a child get divorced, there is a need for some form of continuing communication and cooperation. When parents fail to recognize that need for ongoing cooperation, the child is the one who suffers.

The latest example of parents putting their child in the middles is the story of Joseph and Rebecca Reyes as reported in this ABC news story:


Joseph Reyes returned home from serving in Afghanistan and soon married his sweetheart, Rebecca. Because Rebecca is Jewish and Joseph was Catholic, Joseph converted to Judaism to make his wife, and her family, happy. After a few years, and the birth of a daughter, their marriage had started to deteriorate.

Religion became a contentious issue between the two, and they decided to get divorced. Rebecca became the daughter’s custodial parent, and Joseph had visitation rights. Although Rebecca had been raising their daughter in the Jewish faith, Joseph unilaterally decided to have her baptized. He sent pictures of the baptism to Rebecca, who responded by getting a court order prohibiting Joseph from bringing the girl to church. In response, Joseph had a local television crew follow him as he brought his daughter to church in violation of this order, for which he now may face jail time.

While some have been quick to criticize this as what feels like an unconstitutional endorsement of one religion over another, the issue was that Joseph had his daughter baptized without first discussing the matter with Rebecca. Getting along with an ex-spouse is often not an easy task, but some level of cooperation is necessary for the healthy upbringing of any children caught in the middle. With Joseph and Rebecca, regardless of who “wins” in a courtroom, their daughter loses.

Parents who find themselves struggling over child-care issues with an ex-spouse should consider going to a therapist with experience in post-divorce relationships, taking advantage of the resources that organizations such as The Divorce Center offer, or trying mediation. It’s certainly in the best interests of the child to work towards agreement on these types of issues rather than involving T.V. cameras.

What is a Parenting Plan? What is the best Parenting Plan for my children?

A Parenting Plan is a comprehensive agreement which sets out both the time that children will spend with each parent as well as the rights and obligations of each parent to the children and the other parent during their parenting time. It can include a holiday visitation schedule, pick-up and drop-off locations, and even agreements relating to what will happen if one of the children becomes ill. Parenting Plans are necessary when two parents live apart (whether because they were never married, are divorced, getting divorced, or simply choosing to live separate and apart).

Parenting Plans can be made specific in instances where it is necessary to prevent future conflict, and they can be made flexible so that you and the other parent can make agreements outside of the parenting plan in unforeseen circumstances.

The best Parenting Plan for each family will depend on the ages of the children in that family,the schedules of both the parents and the children, the relative parenting abilities of each parent, any special needs of the children, and the family's traditions. Many people have trouble figuring out where to start in creating a parenting plan and in order to assist separate parents, the Massachusetts Courts asked a a Task Force of judges, lawyers, probation officers and mental health professionals to provide Model Parenting Plans. The Plans are available on the Massachusetts Courts website and although not mandatory or presumptive they can be helpful in designing a Parenting Plan that reflects the ages of the children and the relative involvement of each parent. While these schedules may not work for every family, they are instructive as to what many experts believe are the types of schedules most likely to encourage positive child development.

When considering the best Parenting Plan for their family, we encourage our clients to review these Model Parenting Plans as well as the guide: Planning for Shared Parenting: A Guide for Parents Living Apart.

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.

New Divorce law in New York includes Temporary Spousal Support Guidelines

UPDATE: There is pending legislation for major changes to the alimony statute in Massachusetts. The Alimony Reform Act of 2011 was filed on January 18, 2011 and you can learn more about the Act at MassAlimonyFormula.com or in our recent blog post highlighting the differences between the bill and the current law.

In March of 2010 Attorney Justin Kelsey of Kelsey & Trask, P.C. was contacted by the NYS Law Revision Commission because of his involvement in co-authoring the Divorce Spousal Support Calculator. The NYS Law Revision Commission was asked by a member of the New York State Assembly to investigate how other states were addressing the issue of alimony formulas. Attorney Kelsey discussed the issues at length during a telephone conversation with the executive director of the Commission and expressed his opinion (as described in a past blog post) that a formula at least has the advantage of treating everyone the same and offering consistency to the treatment of alimony by different Judges. It is possible that Attorney Kelsey played some small part, therefore, in the newest changes to New York's alimony provisions.

In addition to adding No-Fault Divorce, a recent New York law that went into effect this month also contains a formula for calculating "temporary maintenance." This temporary spousal support defined in New York Domestic Relations Law Section 236 Part B(5-a) only lasts until either party dies or a final award of maintenance is awarded under Part B(6). Although, there is no formula for post-divorce maintenance, the temporary maintenance formula would likely be instructive for long-term maintenance in many cases.

Similar to the Massachusetts statute, post-divorce maintenance is based on numerous factors including length of the marriage, age and health of both parties, income-earning capacity, needs of the children etc. The calculation for temporary support in the new statute, however, is based on a formula, with the ability to deviate if application of some of these same factors suggests the calculated award is unfair. Essentially this sets up the presumption of a formula with the ability for parties to still argue against the use of the formula.

The formula is explained in Appendix B of the Temporary Maintenance Guidelines Worksheet available on the NY State Court's website. Essentially it calculates whether the payee's net income is more than 2/3 of the payor's net income, in which case there is no alimony award. If the payee's net income is less than 2/3 of the payor's net income then the award will be the lessor of

a. 30% of payor's net income minus 20% of payee's net income; or
b. 40% of the total net income of both parties minus the net income of the payee.

In addition there is a low income adjustment in some cases and the temporary maintenance formula only applies for payors whose net annual income is below $500,000.

For more information and a critique of this new law read this news story on YNN, or this blog post on Legal Match Law Blog.

We will not be updating the Divorce Spousal Support Calculator to include this formula at this time because the New York formula deals only with temporary maintenance orders, while the other formulas currently included in the calculator are intended for post-divorce support.

Reaction to Editorial claiming "New alimony law is bad for women"

Wendy Murphy, an adjunct professor at New England School of Law and a former prosecutor, wrote an editorial at CNN.com entitled New alimony law is bad for women.  The article so poorly misstates what the law was in Massachusetts before The Alimony Reform Act of 2011 (which took effect on March 1, 2012), that I felt compelled to respond:

New Law does not Eliminate Lifetime Alimony in all Cases.

Ms. Murphy argues that the the new alimony law is unfair to women who are overwhelmingly the majority of alimony recipients because it limits the duration of alimony orders based on a formula.  She claims that the formula is arbitrary and that alimony "won't last a lifetime."  She admits that this is an oversimplification of the law, but it goes farther than that.  This is a misstatement of the new act because there are circumstances in which Judges can still order lifetime alimony, and in any marriage over 20 years the alimony order would be indefinite.

Under Old Law, Lifetime Alimony was the Default, not "rare".

Ms. Murphy correctly points out that the outcry which was partly responsible for passing of the new law surrounded primarily men (and/or their second wives) who were upset about lifetime alimony awards.  However, she claims that under the old law "Lifetime alimony, in such circumstances, is terribly unfair. But it's also rare, especially these days", and that "Lifetime alimony has been a problem, but the system mostly self-corrected when judges stopped routinely ordering it."   This is a gross misstatement of the previous law.

Under the old alimony law lifetime alimony was the only option for judges to order.  Although the orders were technically indefinite because Judges were not allowed to order duration limits, an indefinite endpoint meant that orders were for a lifetime unless there was a future change in circumstances.  This was the same for marriages of 5 years and 20 years.  Whether you look at the law from the perspective of women or men, treating marriages of 5 years and 20 years the same is unfair.

Unknown Effect of new Law on Stay-At-Home Mothers


The other inaccuracy in this editorial, is that Ms. Murphy assumes she knows how this new law will be enforced by Judges. The statutory changes include the ability for judges to take alimony orders into account when making property divisions. So a financially disadvantaged spouse (such as a stay-at-home mom) who has given up job prospects for the marriage might have limited alimony, but could also argue for a greater share of the assets. We don't know yet how this brand-new law will play out and whether or not it will be unfair to women or men, or neither, because we don't yet know how the Judges and the Appeals Court will interpret and enforce the various provisions as a whole.

Conclusion: Some Perspective is Important

While Ms. Murphy's effort to criticize the new law goes too far because of her failure to understand the old law, it is important to recognize that her conclusion might still be correct.  Because we don't yet know how the courts will interpret this new law, we don't know if it will have a greater negative impact on women, as she assumes.  If it does have a such a strong negative impact then perhaps some changes might be needed again in the future.

The history of alimony and divorce is traditionally unfavorable to women.  Until 1870 women couldn't own property in most circumstances and even after that alimony was typically used as a property substitute, and usually only awarded in cases where wrongdoing by the husband was proven.  For women who were unable to earn the same way as men, and much more likely to be stay-at-home mothers, this was truly unfair and unreasonable.  In Massachusetts, a more specific law requiring an alimony evaluation based on need and ability wasn't entered until 1974 along with no-fault divorce.  This law finally recognized the realities of a divorce, and the needs of the disadvantaged spouse.

But a lot has changed since 1974 and it is the job of the law to evolve with society.  The Alimony Reform Act of 2011 was a reaction to an unfair situation created by the blanket lifetime alimony ordered under the old law.  To ignore the fact that the old law was archaic and downplay lifetime alimony orders is just as ridiculous as suggesting that women still shouldn't be able to own property.

On a personal note:

As a Father, I recognize that even though my wife went back to work after both of our children were born, the time she lost for maternity leave and the time she misses work when the children are sick negatively affects her career path.  Having children hasn't had the same impact on my career being self-employed. I don't know if there's a fair or perfect way to compensate her for that other than appreciating her and telling her that I appreciate her. This article looks only at the narrow idea of compensating mothers for this loss with alimony orders in a divorce.

The reality is that society as a whole could do a better job of recognizing the value of motherhood and compensate women better for this service they provide to society, instead of only giving them an advantage if they get divorced.  Since 1974, I think American society has gotten better at recognizing the value of motherhood and women in society, and the greater likelihood that both parents work is something the law must evolve to recognize.  Because of that, I think The Alimony Reform Act of 2011 is a step in the right direction and contrary to Ms. Murphy I think we should keep moving forward instead of looking back.


Thanks to Amanda Glinski for bringing this editorial to our attention.

Alimony Reform Update: Committee Hearing on Wednesday 5/18

The Alimony Reform Act of 2011 has had a lot of buzz in the past few months. Since it's filing, over 130 legislators have signed on as Petitioners and many family law practitioners have expressed their support for the bill.

Despite some reservations we at Kelsey & Trask, P.C. have about the bill, we believe that it is a significant improvement over the current alimony law in Massachusetts. In addition, we recognize that some of the provisions that we think could be improved (such as the child support integration) were the result of significant compromise from all of the interested parties (lawyers, judges, citizens and advocates).

Therefore, we at Kelsey & Trask, P.C. support the efforts of Bill Sponsor Gale Candaras and the numerous petitioners to have this bill entered into law as soon as possible.

If you agree, voice your opinion to your state legislators. The Joint Committee on the Judiciary is holding a hearing this Wednesday, May 18, 2011 at 1:00 P.M. in the Gardner Auditorium.

If you're interested in seeing a summary of the bill's changes and viewing a calculator for the proposed formulas visit MassAlimonyFormula.com.

Sexting now considered a Crime against Chastity, Morality, Decency and Good Order in MA.

On April 12, 2010 the Massachusetts legislature passed AN ACT RELATIVE TO ASSAULT AND BATTERY BY MEANS OF A BODILY SUBSTANCE UPON CORRECTIONAL FACILITY EMPLOYEES AND EXPANDING THE PROHIBITION ON THE DISSEMINATION OF OBSCENITY.

The second portion of the Act has to do with amending the Commonwealth's laws against distributing obscenity to close a gap in the law.

The previous statue defined "matter" as

"any handwritten or printed material, visual representation, live performance or sound recording including but not limited to, books, magazines, motion picture films, pamphlets, phonographic records, pictures, photographs, figures, statues, plays, dances."

The new law expands this definition by adding:

"or any electronic communication including, but not limited to, electronic mail, instant messages, text messages, and any other communication created by means of use of the Internet or wireless network, whether by computer, telephone, or any other device or by any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system."

In addition, the definition of “visual material” is amended, by inserting after the word “computer”, the following words: ", telephone or any other device capable of electronic data storage or transmission."

These changes will expand charges for distribution of obscene material to include sexting, and other cell phone related distribution.

This is just one more reason to be careful and think twice about what you e-mail, text, or otherwise send electronically. For more information about why you should be careful about texting see our previous post: What you text can and will be used against you!