Monday, February 9, 2015

Pre-Nuptial Agreements are not automatically enforced.

Pre-Nuptial Agreements are not automatically enforced.

Pre-nuptial agreements in Massachusetts are enforced if they are fair at the time of the execution of the agreement and fair at the time of the enforcement of the agreement. Fairness at the time of the execution means that there was complete financial disclosure, had the ability to obtain advice of counsel, the agreement was free of duress, misrepresentation, and fraud and the terms are fair. Since the agreement must also be fair at the time of enforcement, the Courts take a “second look” at the agreement and view it in the context of the financial circumstances at that time. The agreement will be enforced unless the court finds that it is unconscionable. This means that the agreement will be enforced unless the agreement would leave the contesting spouse without sufficient property, maintenance, or appropriate employment to support herself.

In a recent case, Kelcourse v.Kelcourse, Mass.App.Ct. (Jan. 21, 2015), the court refused to enforce a pre-nuptial agreement. The agreement on its face appeared fair. The agreement gave the
Wife a house and alimony as part of the settlement. The problem was that the house needed over $300,000.00 in repairs and had negative equity. The Wife lacked funds to repair the house and, due to the negative equity, was unable to sell the house. The Court found that the condition and finances of the house rendered the agreement unconscionable and unenforceable.


The Kelcourse case means that in Massachusetts the second look is a real and substantial examination. The Court won't enforce the agreement if the spouse won't be able to support herself. In other words, disclosure and lack of duress is not enough to make an agreement enforceable. The second look must examine the circumstances to see if the facts and enforcement would shock the conscience.

If parties want a pre-nuptial agreement they should consult family law attorneys to advise them. This is not an area where parties should do-it-yourself. When the parties seek to enforce the agreement it may be too late to fix any problems.



Sunday, February 8, 2015

In Massachusetts, home improvement contractors need to follow the rules.

Massachusetts legislation protects homeowners from the unscrupulous contractor. They regulate
Violation of any of these requirements can result in criminal charges or, in a civil case, payment of treble damages and attorney fees of the homeowner.  A recent case, Groleau v Russo-Gabriele (Norfolk Superior Court No. 2012-1818) (Nov 26, 2014), the court found that writing a contract that took away the homeowner's right to arbitration was an unfair or deceptive act. As a result, the contractor had to pay the damages the homeowner incurred to finish the construction and pay treble damages and attorney fees.

This case shows that contractors have to comply with the state regulations and that homeowner's can't contract away their protections. It is a complicated area of the law. Contractors should consult an attorney before soliciting business from homeowners. Homeowners should consult an attorney before signing a contract for home repairs.

Sunday, February 1, 2015

The New Massachusetts Alimony Law – A Deal is a Deal

In 2011 Massachusetts enacted an alimony reform law. This law changed many aspects of alimony including imposing termination of alimony when the payor reaches the maximum retirement age and when the payee cohabits. Since enactment of this law, lawyers and Judges have been struggling with the question of how do these changes affect prior alimony agreements and judgments. On January 30, 2015 the Supreme Judicial Court answered this question by stating in essence that a deal is a deal. The Court held that the limits for cohabitation and retirement do not apply retroactively to alimony agreements and judgments that pre-date the enactment of the new law.

This interpretation of the new law does not apply to all alimony judgments. When parties enter into a separation agreement, they have the ability to specify that the agreement merges into the divorce judgment or survives as an independent agreement. If the agreement merges with the divorce then the agreement may be modified in the future if certain conditions are met. If the agreement survives as an independent contract, then the agreement can't be modified by a judge. It may be modified by agreement of the parties. The new alimony law does not give the courts the power to change any prior separation agreements that survive. This new interpretation only applies to separation agreements that merged into the decree of divorce.

In three cases, Chin v. Merriot, Doktorv. Doktor, and Rodman v. Rodman, the court held that with one exception, all alimony judgments that pre-date the new law are subject to modification as if the new law never went into effect. This means that alimony can change if the terms of the separation agreement or divorce judgment state conditions that will change or terminate the alimony or if there is a material change of circumstances. Reaching retirement age or the recipient of alimony cohabitating only constitutes a material change of circumstances if the agreement specifically states so. Otherwise, there can not be a modification for these reasons.

These decisions indicated that the new law does allow termination of alimony for what is known as “durational limits.” For marriages less than twenty years, alimony is limited to a percentage of the length of the marriage. The longer the marriage, the higher the percentage. Prior alimony awards that had no termination date that are merged into the decree of divorce and the length of the marriage is less than twenty years are subject to these durational limits. As a result, a modification may be filed to terminate alimony under these circumstances.



The new alimony law is very complicated. If you have questions about the application of this law you should consult an experienced family law attorney for advice about your particular situation.

Saturday, January 17, 2015

What can a parent do when they are the victim of parental alienation?

There is no perfect answer to this question. As long as one parent keeps fueling the alienation flames, the alienation will continue. Every case of parental alienation is different but the cause is the same. One parent uses the children as weapons to hurt the other parent. In essence, the parent is sacrificing the children's well being to fulfill their own selfish desires. The following suggestions may make no difference or may solve the problem.
  1. Keep a diary. This should detail all of your attempts to maintain a relationship with the children and the children's responses. Whenever possible, backup the diary with documents that corroborate the information you note. Emails, telephone bills, and receipts from stores and restaurants should be preserved. Use an email program that documents when the emails are read by the recipient.
  2. Take advantage of all contacts permitted by the court. Don't miss any visits. Make telephone calls or Skype calls every day if allowed by the court. Use texting to communicate with the children but not excessively. Send gifts or cards for every occasion possible. Cards are created for many holidays such as New Years, Valentine's Day, Independence Day, and many others. Make sure you have copies of the cards and enter the mailing of the cards and the gifts in your diary. Of course, make sure you send gifts for major holidays or events like birthdays or Christmas.
  3. Attend every event in your child's life. Don't miss a dance recital, a little league, a concert, or any other event in which your child is a participant. Contact the school and obtain information about events, parent teacher conferences, and make sure the school has your contact information. Do the same for the child's pediatrician, dentist, and other doctors. Make sure you are on time for each event.
  4. Do everything that the court orders. If the court orders counseling, make sure you go to counseling. If the court orders drug tests, make sure you avoid using drugs and take every test ordered. Continue counseling and drug tests even if the children or the other parent stop attending.
  5. Take a parenting class. You may be the best parent in the world but the court will be impressed by your efforts to improve yourself.
  6. Never ever use physical force to discipline your children. The law may permit use of reasonable force but you are under a microscope and can't afford the luxury of using physical force. The exception is that you may have to restrain (but not hit) a child to prevent harm to another child, yourself, or someone else.
  7. Avoid discussions with your child about the alienation, child support, or any issue you have with the other parent. Make sure the children can't hear when you have discussions with other people about these matters.
  8. Be careful about use of social media. You should assume that everything you post on social media will be reported to the Court. Never say anything critical or negative about your children, the other parent, the attorneys, or the Court. Social media can be used to make positive statements about the children but do so sparingly. Don't comment on every posting by your children. It will make you look like a stalker.
  9. Tell your children that you love them. Tell them this at the end of every phone call and every visit. Don't overdo this. Once a day is fine. Four times a day makes you look crazy. Don't ask the children to respond in kind. Pressuring the children for affection is certain to hurt you.
  10. Be persistent and consistent in your efforts to maintain your relationship with your children. Don't give up hope no matter how frustrating it becomes.
  11. Retain a family law attorney and regularly discuss the parental alienation and your efforts to maintain the relationship. In many cases, only court action can stop the abuse to the children. An experienced family law attorney should be able to advise you about when to resort to the courts. Like everything else in regards to parental alienation, it may take a number of court actions before you start to see results.  In the most severe cases of parental alienation the court can  change custody.



Saturday, January 10, 2015

Cyberharassment is still harassment

The internet provides new opportunities to commit criminal acts. However, in many instances, laws that were not designed for the internet provide remedies. A recent case illustrating use of a traditional law to punish internet conduct is Commonwealth v. Johnson, 470 Mass. 300 (2014).

In this case, a husband and wife harassed their next door neighbors through a third person. They placed false ads on Craig's list so that potential buyers of goods would bother the family day and night. They filed a false claim of child abuse with the state resulting in an investigation of the family. In addition, threatening emails were sent.

Massachusetts G.L. c. 265, § 43 punishes as a criminal act causing a pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarms or annoys that person. The statute does not mention internet, computers, or cyberspace. However, the court found that this statute was sufficient to convict a person who used the internet and computers to harass someone.

Just because computers and the internet became household items after most criminal laws were created doesn't mean that they are not governed by the laws that predated the internet. If you are the victim of harassment you should consult an experience lawyer who can advise you concerning the laws that are available to protect you.



Friday, December 26, 2014

Health Insurance, Emancipation, and Separation Agreements

In Massachusetts divorces health insurance is a priority concern for judges. It is standard practice to
provide health insurance for children until they are emancipated. In addition, unless there is a remarriage, health insurance is usually provided for an ex-spouse until all children are emancipated. The ex-spouse is may also be included in coverage because in Massachusetts most family health insurance policies cover an ex-spouse at no additional cost. As long as there is a dependant child, a family health insurance policy is needed. It is now time to reconsider the standard approach to health insurance in separation agreements.

Under prior law, once a child graduated from college or was otherwise emancipated, they had to get their own insurance policy. The law did not allow them to be covered under their parents' policies. Obamacare has changed this. We can now cover children under a parent's policy until age 26. If a parent is going to provide insurance for a child after emancipation they should also cover the ex-spouse as well. While a parent may voluntarily cover a child they may find that employers won't cover an ex-spouse unless there is a court order that requires such coverage. Divorce attorneys should anticipate the ability to cover the ex-spouse for an extended period due to Obamacare and draft language to address this.

Not every child will need health insurance coverage from a parent after emancipation. Many children will find employment and obtain health insurance from their employer. If this happens, there won't be a family health insurance policy available to cover the ex-spouse. Whatever language is used in a separation agreement needs to consider this potential.

There is also the issue of the cost of providing post-emancipation health insurance for a child. A family plan will always cost more than an individual plan. Child support in Massachusetts presumes that both parents will contribute to the cost of raising a child. It would be reasonable for the parents to share the cost of post-emancipation health insurance for a child. While a judge can't order health insurance for a child after emancipation, the parties can contract for such insurance. Splitting the cost of the health insurance would constitute consideration to support the contract. In the event the parties later litigate over the enforceability of such a contract, splitting the cost may make the difference between enforceable and non-enforceable.

A good separation agreement should anticipate as many possible changes as possible. Planning for a child and ex-spouse to continue to have health insurance after the child's emancipation should be part of every separation agreement. An experienced divorce attorney should draft language to provide health insurance for this additional period.

Sunday, December 14, 2014

Child support agreements need court approval

seeking approval from a court. A recent case, Zizza v. Zizza, from the Massachusetts Appellate Division (Oct. 27, 2014) is an example of the problems created when parents make an agreement without judicial approval.

In the Zizza case, the parties, after a foreign divorce, entered into a private agreement regarding property division, child custody, visitation, and child support. The agreement also had a clause that stated that the agreement could not be be modified by any court. This agreement eventually resulted in litigation in Massachusetts District Court with the court ordering a modification of the child support obligation. On appeal, the Appellate Division upheld the modification of child support. The court added a comment which explained that the Massachusetts Legislature has declared that it is against public policy to make an agreement that prevents the courts from changing child support obligations.

If you are about to make an agreement for child support you should consult a lawyer who is experienced in family law to make sure you don't fall into a child support trap.