Video or Phone Testimony in Divorce Cases: New Case Law

Should a party in a family law proceeding, who is unable to testify at trial or a hearing in person, be allowed to testify through the use of video or telephone? This was the issue in a recent case addressed by the Massachusetts Appeals Court.

In Bonaparte v. Devoti, the parties were married in 2005 in Italy. The husband lived in New Jersey, while the wife was an Italian national. In 2006, the wife gave birth to the couple’s son in Italy; she continued to live there, while the husband continued to live in New Jersey but visited his wife and son often. By 2009, the parties moved to Cape Cod, where they lives together in their marital home until 2011, when the wife and child returned to Italy. The wife was responsible for her own expenses and received little help from the husband until 2015, when he began sending her $100-150 per week.

In 2015, the husband filed for divorce. Nine days before the trial, the wife filed a motion seeking permission to testify via telephone or video. She explained that she was unable to enter the United States due to an irregularity with her permanent resident status. She also asserted that the child’s passport was expired and could not be renewed until the husband signed “the appropriate papers with the Italian Consulate.”

The trial judge denied the wife’s requests, stating that she had not properly sought a continuance. The judge entered a divorce judgment which closely resembled the proposed judgment submitted by the husband. The judge declined the wife’s request to deviate upward from the child support guidelines, and instead deviated downward—the judge noted the husband’s travel expenses as the reason.

The wife appealed, claiming that her due process rights were violated, and that denying her the opportunity to testify electronically was an abuse of discretion. The Appeals Court agreed. “It is apparent the judge viewed the wife’s motion to testify by electronic means as untimely, despite that there is no specific time frame for filing such a motion, under rule 30A(k) or otherwise,” the Court explained. “In focusing on audiovisual depositions pursuant to rule 30A, the judge appeared to overlook other available options to facilitate the wife’s participation in the trial, including live testimony via telephone or video, as requested by the wife.”

In doing so, the Court said, the trial judge failed to consider other relevant factors, such as the potential prejudice to the wife, and most importantly, the potential impact on the child’s best interests. “The judge’s findings contain minimal discussion of the child’s needs, despite those needs being a mandatory factor for the judge to consider under G. L. c. 208, § 34. The wife sought to introduce, through testimony, evidence regarding the child’s needs, including the various expenses she regularly incurs in connection with the child’s developmental and learning disabilities.”

Because the wife was not afforded the opportunity to present information regarding the mandatory factors, the Appeals Court held that the matter must be remanded to the trial court. “Here, the risk that the child may be receiving less support than necessary due to the wife’s inability to testify is too great to ignore. In light of the judge’s failure to consider the interests of the wife and the child, we conclude the denial of the wife’s request to testify by electronic means was an abuse of discretion.”

If you have questions or concerns about issues involving family law, alimony, custody, child support, and more, you should contact a competent attorney. Our divorce, family, and domestic relations attorneys may be able to work on your behalf to handle your case. Contact our offices by phone at 978-225-9030 during business hours to schedule a free consultation. We will respond to you as soon as possible.

Post-Divorce Agreement Without Court Approval: Is It Valid?

It is no secret that, in order for a divorce to be legally binding, court approval and judgment must be rendered. What happens, however, where the former spouses reach a post-divorce agreement between themselves without court approval? Do those types of agreements have any legal effect?

This question was addressed in a recent case by the Massachusetts appeals court. In Smith v. Smith, the court addressed the case of spouses who originally entered into a divorce agreement that set alimony at $650 per week. The agreement also provided that all matters regarding alimony merged into the divorce judgment. Subsequently, the husband reduced the amount of alimony he paid nine separate times, ultimately reducing it to $800 per month. At trial, the judge found that the husband and wife agreed to those reduced rates without filing any complaint for modification. In total, over a four-year period, the husband paid $87,400 less in alimony than what the divorce agreement called for.

The wife filed a complaint for contempt. She also sought the $87,400 in arrearage that she claimed the husband owed to her. The husband, in return, claimed that the wife had agreed to the alimony reductions, and that he made various other payments to cover costs for their emancipated children in exchange. The husband claimed that he otherwise would not have made those payments to the children. At trial, the husband was found not to be in contempt. The trial judge also ordered the parties’ alimony payments to be retroactively modified. The wife appealed.

On appeal, the Court noted that “not every violation of a clear order will constitute contempt, and thus that the requirement to prove “clear disobedience” has teeth.” The Court stated that contempt cases must be judged under the totality of circumstances. In this case, not only did the wife agree to the modified amounts, but “in reliance thereon, the husband had made the payments agreed upon and also had changed his behavior, to his detriment, by assuming “additional financial responsibilities” with respect to the parties’ emancipated children. It was within the judge’s discretion to conclude there was no “clear and undoubted disobedience” on these facts.”

Next, the Appeals Court took up the issue of whether the retroactive modifications should have been ordered by the trial judge. The Court pointed out that it is possible for a party not to be in contempt, yet still owe alimony. “The judge’s analysis and findings in this case were not sufficient to justify the retroactive modification of alimony,” the Court held, because the trial judge failed to address the factors mandated by G. L. c. 208, § 34, such as those dealing with the age of the parties, the length of the marriage, and the parties’ respective income and estates.

In order for an alimony judgment to be modified, those factors must be considered by the judge, the Appeals Court stated—and because they were not so considered here, the retroactive modification should not have taken place. “On remand, the judge should consider and evaluate the factors enumerated in § 34, including whether there has been a “material change in circumstances” with respect to those factors since the divorce judgment entered,” the Court explained. “In this connection the appropriate circumstances for consideration may include postdivorce conduct of the parties such as are present here, where a former spouse made certain statements and the other spouse detrimentally changed position in reliance thereon. Those facts, however, should be considered in the broader context of all the relevant § 34 factors, and any other material postdivorce changes to same. In so ruling, we do not mean to suggest, or to foreclose, any particular outcome after further consideration.”

If you have questions or concerns about issues involving family law, alimony, custody, child support, and more, you should contact a competent attorney. Our divorce, family, and domestic relations attorneys may be able to work on your behalf to handle your case. Contact our offices by phone at 978-225-9030 during business hours to schedule a free consultation. We will respond to you as soon as possible.

 

The Intersection of Immigration and Family Law

Many natural born citizens in the United States take for granted the ease of navigating the legal system as a United States citizen. This assertion is especially true in comparison to the ease of navigating the legal system for non-naturalized citizens. Many citizens do not understand the significant role that one’s citizenship status plays in the family law context, such as the ability to marry, divorce, obtain custody of children, and obtain financial support from another person. Citizenship carries many benefits within the family law context. There are, however, ways for all people to navigate the legal system to understand family law and the intersection of it with immigration.

The law values the family unit and the protection of children, and family law in particular has the power to affect society and the family unit. Family law also has the potential to encompass other cornerstone issues of law as well, such as family law issues involved with immigration. Given the sensitive nature of this issue–as well as its timeliness–it is important to understand the intersection of family law and immigration law.

Each of the following scenarios includes family law and immigration law issues:

  1. Hovhaness was born in the United States. He met a woman named Agnes who was born in Armenia and arrived to the United States as a teenager. The two had one child together. Years after their son was born, Agnes decides that she wants to return to Armenia to be with her elderly parents. She wants to bring their child. Is she able to? Does Hovhaness have any rights to the custody of the child?
  2. Joshua and Jonathan are a same-sex couple. Only one of them is a citizen of the United States. The couple wants to know whether they can legally marry in the United States. If they marry, would they both be citizens?
  3. A former couple, Bobby and Josie, are divorcing. They are parents to two daughters. Bobby wants to move to another country to live. Is he able to do so? Does he have any child support, alimony, or other obligations?
  4. A mother and her two children are refugees from another country. The husband of the woman and father to the children died. The mother wants to know whether she has any recourse, any way to obtain monetary support from her husband’s estate, located in their native country.
  5. Ximena was born in the United States. Her mother and father immigrated to the United States illegally. With growing concern about her family, Ximena wants to know more about her rights and responsibilities. Is she a citizen? If not, it possible for her to become one? Is there a way to make her parents citizens? Imagine that Ximena also has an older brother, but he was born in Mexico. Is he a citizen?
  6. A young woman lives with a United States citizen, a man. He threatens to report her to authorities if she discloses to anyone about the abuse and violence that he perpetrates against her.
  7. Natalie was born in India. She met her husband in India as well. The couple moved to the United States and became legal citizens. Eventually the couple had two children. One day, Natalie’s husband left for India with their children. Does Natalie have any recourse? Would she be able to get her children back to the United States?
  8. A young man marries a United States citizen woman in order to obtain his permanent residence card.

Many immigrant families need legal support that involves family law and their immigrant status or former immigrant status. These issues affect people of different genders, orientations, religions, nationalities, and backgrounds.

Immigrants may need help in the preparation and filing of petitions for alien relatives, adjustment of status, naturalization, and issues involving deportation or removal. A skilled attorney may be necessary to help an immigrant or the citizen in a familial relationship with an immigrant to find the solution to a problem. Marriage visas, green cards, bonds, DACA assistance, other visas, and other statuses may be tools available to you for your specific family law and immigration issues.

If you have questions or concerns about issues about family law, custody, child support, or domestic relations, you should contact a competent family law lawyer. Our divorce, family, and domestic relations attorneys may be able to work on your behalf to handle your case. Please contact our offices by phone at 978-225-9030 during business hours or complete a contact form on our website. We will respond to you promptly.

Uncontested Divorce: The Process in Massachusetts

In some cases, an uncontested divorce may be the most cost-effective and efficient option.

Mike and Barbara have been married for nine years. After meeting in college, they were married when Mike was nineteen-years old and Barbara was twenty-years old. They now realize that they both married too young and probably should never have married each other—their relationship has turned into more of a friendship, and they both want an amicable and uncontested divorce. Mike and Barbara do not have children, and both work as teachers in the public school district in the community in which they live. What is their best option for a divorce in Massachusetts?

In Massachusetts, an uncontested divorce means both parties are in alignment with the major issues that often appear in a contested divorce. These typical topics where issues may be present include topics that involve property, alimony, child custody, child support, and more. If the major issues regarding these topics do not exist, both parties may begin the divorce process together. To obtain a divorce in Massachusetts, the first step is to determine that the parties live in Massachusetts. Assuming that Mike and Barbara mentioned above are able to meet the residency requirement for a Massachusetts divorce, then they will be able to divorce in the Commonwealth.

The next step in a divorce is to draft a separation agreement. A separation agreement defines the way that the couple will divide property, handle alimony, structure the child custody arrangement, and determine child support. When a divorce is uncontested, this means that both parties have no qualms or concerns about these topics in the divorce. Therefore, the parties may proceed forward by including their separation agreement into the filing for the divorce. The separation agreement must be signed and notarized both parties. Mike and Barbara can determine the way that they want to divide their property. They can define the amount of alimony that they wish to establish. If they had children, they can determine who has custody, how they will share custody, and the manner in which they wish to raise their children. Mike and Barbara will attach their agreement to the filing for their uncontested divorce.

Prior to the hearing for the divorce, Mike and Barbara can also file a joint petition to the Probate and Family Court. Typically, in Massachusetts, one party in a divorce who wishes to divorce the other must file a petition with the court to provide the other party of the divorce. The party filing the petition then waits for the spouse to respond to the petition. In an uncontested divorce, however, the parties can complete the petition together. They must complete several statements in support of their petition, such as financial statements. Once this step is complete, the parties must file the documents with the probate and family court in the Massachusetts county where either party resides. If Mike and Barbara complete the joint petition together, they can include the joint petition with the separation that they file. They can state that they had an irretrievable breakdown of marriage as the reason for their divorce. There is no fault to their divorce – they simply wanted to end it together.

Next, once the documents are completed and filed by the parties, the Massachusetts Probate and Family Court reviews the separation agreement and joint petition that are filed with the court. The judge schedules a hearing, usually rather quickly, or approximately within 30 days. During the hearing, the judge confirms that both parties agree to what is included within the filing. The judge also reviews the separation agreement to ensure that the agreement is fair to the parties. If the judge determines that the agreement is not fair to the parties or the children of the parties, the judge may decide that both parties must modify their agreement to make it fair or equitable. If the parties do not agree, then the divorce is not granted. If the parties agree to the modified provisions, then the separation agreement becomes binding. If the agreement is binding, then divorce is granted a few months after the judgment.

Even if you have an agreeable relationship with your spouse or partner, it is important that you find an attorney with the knowledge and experience to protect you, your family, and your assets. If you have any questions about divorce, family law, child support, alimony, or more, please contact our firm. You may schedule a free consultation with an experienced family law lawyer today. Call our offices at 978-225-9030 during business hours or complete a contact form online. Do not hesitate to call our offices today.

Special Considerations When Doctors Divorce

According to recent studies, divorce among doctors is not as common as one would expect. If you are a doctor who is considering getting a divorce in spite of the positive statistics, there will likely be special considerations that you may need to address with a family law attorney. In general, the divorce process can be a complicated process, and when one or both spouses are doctors, a divorce may be even more complex than a divorce between a non-doctor couple. The heightened complexity of the divorce may stem from various reasons, such as increased earning potential; the existence of a private practice; or the amount of financial support contributed by the non-doctor spouse.

Any doctor with a private practice might find it stressful to consider that a divorce may affect his or her practice negatively. In Massachusetts, the ways divorce can affect your practice may vary depending on your marital situation. Massachusetts judges divide marital property equitably among the spouses upon divorce. It is important to understand that equitably does not always mean equally, as judges base their decisions on fairness.

It can be a common misconception that if property was acquired before a marriage, it will not be divided upon the dissolution of the marriage. In Massachusetts, the judge will divide the property in any way he or she feels is equitable, even if the property was acquired before the marriage took place. For a doctor who started his or her own practice prior to the marriage, this could mean the practice may be considered marital property and subject to division. Usually, an appraisal will be done to determine the value of the practice. To avoid causing economic damage to the practice, the court may offset against the existing property value. For example, if the doctor’s medical practice is worth $300k, and the parties own a $300k home together, the non-doctor spouse will keep the house and the doctor will be entitled to keep the medical practice.

The situation may differ when both spouses are doctors and started their medical practice together. If this were the situation, the practice would most likely be divided equally. On the rare chance that the spouses decide they can work with one another post-divorce, division of the practice can be avoided. As continuing to work together is usually not a viable option (hence the divorce) one doctor will be required to buy out the portion considered marital property from the other spouse.

Unless you are a sole practitioner, it is also important to evaluate how your pending divorce may affect your partners and staff. A divorce may affect your shares in your practice and your money flow, which in return may affect your ability to pay your support staff. Although every situation is different, being proactive and discussing with a divorce attorney the possible repercussions your divorce may have on your practice is important.

Another complicated issue that may arise for a doctor who is divorcing is the how much alimony the non-doctor spouse is entitled too. A common scenario is where the non-doctor spouse worked to help support the other spouse through medical education. Moreover, it may be argued that the non-doctor spouse forfeited a promising career so that the other spouse could pursue his or her career as a doctor. Either argument may persuade a judge that the non-doctor spouse is entitled to more alimony or a larger portion of the marital property.

Massachusetts law considers reimbursement alimony for the non-doctor spouse in a short-term marriage (no more than 5 years). Reimbursement alimony functions as a way to pay back the non-doctor spouse for any economic contributions he or she may have made to the spouse who received the medical education. Generally, this type of alimony will be provided when the economic contributions were made to help the other spouse complete their education.

If you are a doctor who is considering getting a divorce, it is important that you contact a divorce attorney as soon as possible. Divorce can be a very difficult process and there may be added complications when doctors divorce, especially in situations where a private practice is involved. As a doctor who is potentially divorcing, it is important to be transparent with your divorce attorney because it is possible your pending divorce may affect your life in ways you were not expecting. For more questions regarding special considerations a doctor should be aware of when seeking a divorce, please contact our office at your earliest convenience to schedule a free consultation.

Health Insurance Issues in Divorce and Custody

What Massachusetts laws govern health insurance during divorce and custody cases?

Divorce

When seeking a divorce and/or dealing with custody of children, a question that often concerns individuals is the issue of health insurance coverage. This is a great question to bring up to your family law attorney, as every situation pertaining to health insurance is different. When seeking the advice of a family law attorney, it is important to bring all information regarding your health insurance with you. When dealing with a divorce and all its complications, health insurance can be low on the list of priorities, but it can become a point of contention, especially when children are involved.

Generally, during a marriage one spouse who is the holder of a health insurance policy will provide coverage to the other spouse and to the children in the family. Therefore, upon dissolution of the marriage the question remains: who will be responsible for providing the health insurance to the uninsured spouse and if necessary, to the children? To put this answer simply, in Massachusetts, the Judges of the Probate and Family Court, in conjunction with the state insurance laws, determine who is responsible for health insurance coverage.

As with temporary support, at the commencement of divorce proceedings, a judge will address the health insurance issue and enter an order preventing either party from terminating or making changes to their existing coverage. Therefore, during the preliminary stages of the divorce, the insured spouse will be obligated to continue providing insurance coverage to the other. As the divorce proceedings evolve, the judge will decide based on the insurance available to each spouse how coverage will continue. Ultimately the judge decides if the insured spouse is no longer obligated to provided insurance, if they must continue providing coverage, or whether they will be required to reimburse the other spouse for finding independent insurance.

Under Massachusetts law, a spouse who is a member of a group insurance policy, upon divorce will be obligated to provide insurance benefits to the ex-spouse under his or her plan, unless divorce judgment provides otherwise. Coverage under a group plan will continue until remarriage of either the member spouse or until a specific time stated in the divorce judgement.

In addition to determining who will be responsible for providing health insurance upon the divorce, there are other factors to be considered, such as deductible and premium payments and who will bear the burden of paying for medical expenses that insurance does not cover. At the time a divorce is finalized, all of these issues will be addressed and will be a part of the divorce agreement.

Child Custody

Health care coverage is also a concern is when dealing with child custody issues and determining which parent will be responsible for providing the child or children with health insurance. Similarly to spousal health insurance, the question regarding health insurance coverage for a child is governed by Massachusetts family law in conjunction with the state insurance laws. It must also be noted that while a judge must make these decisions in conformance with the laws, the judge will also consider several factors in determining which parent should provide the health insurance for the child. For example:

  • Which parent currently provides health insurance for the child/children?
  • Is the current coverage available at a reasonable cost?
  • Is providing health insurance going to cause a parent “undue hardship?”

Massachusetts law affords parents several avenues for providing health coverage for their child(ren). These options include but are not limited to providing coverage through their employer, choosing to get coverage through MassHealth, or purchasing health insurance independently. Since Massachusetts law considers health care coverage a component of the child custody, it is mandatory that a child’s health care coverage be incorporated into the child support order. Therefore, if neither parent can provide health care coverage for the child, the courts may allow the parents to come to a written agreement that the child will be covered in an alternative way, such as under the grandparent’s insurance.

While navigating the child custody waters, it’s important to discuss with your family law attorney your concerns with providing health care coverage for your child. Generally, absent an agreement to the contrary, a judge can only order a parent who pays child support to provide health care coverage. However, a judge must use discretion and see if the insurance available to the parent can be obtained at a reasonable cost, and whether providing it would cause the parent an “undue hardship.” The Massachusetts child support guidelines provide that if a parent can obtain health insurance from their employer, it will be available at a reasonable cost. For more information about your child’s health care coverage, you may consult the Massachusetts Child Support Guidelines, section II.h.

If the coverage is not available at a reasonable cost or it would cause the parent to experience an “undue hardship,” the judge may not order the parent to provide health care coverage for the child. An undue hardship may arise when providing a child with health care coverage would prevent a parent from making child support payments, or if a child experiences extraordinary health care expenses and the cost would greatly exceed the coverage the parent is able to provide.

Ultimately, health insurance and health care coverage will likely come up in divorce and child custody cases. If you are experiencing family turmoil and are concerned about how it will affect you or your child’s health care coverage it is important to contact a family law attorney to discuss your options. If you need more information about family law, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form and we will respond to your phone call or submission promptly.