by Damian Turco | Feb 7, 2019 | Divorce, Equitable Distribution, Separation
Imagine:
Five years ago, you married your spouse in Massachusetts. During this time, you had two children, shared a marital home, had a business together, and shared countless other assets. You have decided to file for divorce, but things have gotten a bit complicated. Your (soon-to-be former) spouse wants to move out of state and have custody of your children. You probably have so many questions, like can you file for divorce here? Does this story sound like something you are going through? The jurisdictional requirements for filing for divorce in the Commonwealth are the first steps in the process. This article will explain if your divorce can be filed here, what to do if your spouse is leaving the Commonwealth during the proceedings, and how this complication can affect child support and custody.
First, you must determine if your divorce can be filed in Massachusetts. You may file the divorce action in Massachusetts based on the domicile of both parties. Domicile is defined as a person’s permanent residence where they live full-time, or the intent of a person to remain permanently or for a period in a new place. To determine domicile in a divorce proceeding, Massachusetts judges consider how long a person lived in Massachusetts, and any further signs of permanent residency. These signs can include a mortgage on a home, a Massachusetts driver’s license or whether children were being raised in the Commonwealth. In short, if you are filing for divorce in Massachusetts, you must have been living in Massachusetts at least one year before the filing or if you are living in Massachusetts at the time of the divorce and the divorce occurred in the Commonwealth, jurisdiction is still valid. See G.L.c. 208, §5. If the cause of action for your divorce occurred here, you have subject matter jurisdiction here.
Massachusetts Long Arm Statute
If your former spouse continues to say that because they moved they cannot be asked to participate in a divorce in Massachusetts, you have two options: Rule 4(e) of the Massachusetts Rules of Domestic Relations Procedure, and the Massachusetts Long Arm Statute. Rule 4(e) explains the jurisdictional requirement of service of process during a divorce case. Rule 4(e) will give your former spouse proper legal notice that there is a divorce action against him or her. The rule states:
When any statute or law of the Commonwealth authorizes service of process outside the Commonwealth, the service shall be made by delivering a copy of the summons and of the complaint: (1) in any appropriate manner prescribed in subdivision (d) of this Rule; or (2) in the manner prescribed by the law of the place in which the service is made for service in that place in an action in any of its courts of general jurisdiction; or (3) by any form of mail addressed to the person to be served and requiring a signed receipt; or (4) as directed by the appropriate foreign authority in response to a letter rogatory; or (5) as directed by order of the court. (Mass. R. Dom. Rel. P. 4(e).)
Additionally, the Massachusetts Long Arm Statute describes when a court can exercise jurisdiction over a person who engaged with business or other affairs in the state. This statute allows the state to bind a defendant in a divorce hearing to the laws of the Commonwealth. Specifically, the Massachusetts Long Arm Statute states that if anyone maintains a domicile within the Commonwealth of Massachusetts during a “personal or marital relationship of of which arises a claim for divorce…”, the case can be heard in the Commonwealth. See Mass. Gen. Laws ch. 223A, s. 3(g).
Having contact with more than one state can affect child custody and support decisions as well. Regarding child support, please be aware that the Massachusetts Long Arm Statute can further apply to your claim for child support against your former spouse if they move. If you continue to live in the state with your children, the Court may exercise jurisdiction over your former spouse, and you may petition the Massachusetts Probate and Family Court as well.
Nationally v. Massachusetts
Regarding child custody, you may be wondering if more than one state can enforce a custody decision? Will Massachusetts law take precedent? The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) of 1997 has been adopted by 49 states – EXCEPT FOR MASSACHUSETTS! This act aims to establish jurisdiction over child custody in one state and to protect these orders from being modified in a different state.
Unlike the rest of the country, Massachusetts relies on the Massachusetts Child Custody Jurisdiction Act (MCCJA), the Massachusetts Uniform Interstate Family Support Act (UIFSA), and the Federal Parental Kidnapping Prevention Act (PKPA). These laws state that if a child resides in Massachusetts when a divorce is filed, Massachusetts can exercise jurisdiction over the children in that specific case. Like the UCCJEA, the Commonwealth may exercise temporary jurisdiction over a child where there is kidnapping or child endangerment. While the MCCJA and UCCJEA share many similarities, things may become difficult if your former spouse wants to take the children with him or her to their new state. While the UCCJEA allows the court where the divorce was initiated to retain jurisdiction over a child’s case, even if they have left, MCCJA does not. The Commonwealth’s act prohibits Massachusetts courts from retaining jurisdiction over children once they leave the state. These situations create a lot of confusion which can lead to two custody cases ongoing simultaneously. This financial and stressful burden that stems from Massachusetts’ difference is important to note when filing for divorce.
If you need more information surrounding the jurisdictional requirements in a divorce proceeding, or family law generally, you may schedule a free consultation with our office. Call (866) 995-6663 during regular business hours or schedule a phone consultation.
by Damian Turco | Jan 23, 2019 | Custody, Divorce
In Massachusetts, when a parent separates their partner, they may not agree about how they will handle the various circumstances that arise when raising their child. Because of this, either party (or both) parties may ask a Massachusetts judge to write an order asking for custody, which a judge may accept, reject, or modify.
Let’s say that a father lived and worked in Massachusetts. A mother and her new husband decided to move from Massachusetts to Rhode Island. The mother had been awarded sole physical custody of their child, Corey. The father, therefore, is a non-custodial parent. He wants to know if he has any rights to his child. He is upset that his visitation will be changed if the mother and her new husband move to Rhode Island, especially because the new move means that he will be over 50 miles away from his son.
In Massachusetts, there are four different types of child custody arrangements. Parents can make their own arrangements, and the judge will determine if the agreement that the parents craft is in the best interest of the child or children.
The first type of custody is “sole legal custody.” This form of child custody gives one parent the right and responsibility to make major decisions about the child, including decisions about education, medical care, religion, and emotional needs. Another type of child custody is “shared legal custody,” meaning that both parents are involved in and responsible for the major decisions about the child. A third form of custody is “sole physical custody,” which means that a child lives with one parent and is subject to reasonable parenting time by the other parent, unless the Massachusetts family court judges decide that parenting time between the child and the parent would not be in the best interest of the child. Parenting time is a form of visitation. The parent with parenting time does not have physical custody of the child. The final form of child custody is “shared physical custody.” This type of child custody gives the child periods of living with each parent, so that the child has frequent and continuous contact with both parents.
Judges in the Commonwealth determine what is in the best interest of the child when they make decisions about custody or parenting time. The court will evaluate: the child’s well-being; how the child is doing in school and in the community; the child’s relationship with the parents and other members of the family; the parents’ history of abuse, drug use, or abandonment; whether one parent has been a primary caregiver in the past; and the child’s preference, depending on the age and maturity of the child.
Applying the laws to the facts above, the father may argue that his son’s move to Rhode Island would be burdensome on him and his rights to parental visitation as the non-custodial parent. Massachusetts courts recognize the adverse effect of the elimination or curtailment of the child’s association with the non-custodial parent. However, the court would likely still hold that the father’s right to see his son with an “alternative visitation arrangement” would not be affected. This is especially true if the parent’s schedule is suitable for the change.
Courts in Massachusetts make decisions such as these based upon the best interest of the child. For Corey mentioned above, the court might believe that his education opportunities and stability opportunities would be expanded with the move. The father’s reasonable parenting time would not need to change, but would only need to adapt in some way.
Parents with sole physical custody have the right to have the child at home with the parent. However, the other parent has the right to parenting time, so long as this parenting time benefits the child as well. If both parents as described above had shared physical custody, then a court may hold that such a move would be detrimental to Corey.
If you have any questions about issues involved in family law, child law, child custody law, or other issues, you should contact a competent family law attorney licensed to practice law in the Commonwealth of Massachusetts. Our experienced professionals may be able to work on behalf of you. Please contact our offices at your earliest convenience by phone at (866) 995-6663 or complete a contact form on our website. We will return your inquiry with prompt attention.
by Damian Turco | Nov 3, 2018 | Alimony, Child Support, Divorce, Equitable Distribution
Divorce can inevitably become a very stressful period in a person’s life. As emotions run high and become all-consuming, many parties do not realize that financial mistakes can be made during a divorce. This article will discuss some of the financial errors your divorce attorney can help you avoid during this high-stress time.
It is likely you and your spouse share many financial commitments—credit cards, a mortgage, health insurance, and variety of monthly bills are just a few examples. Separating these commitments is incredibly difficult, and our divorce attorneys are aware of the emotional toll this reality can take on your life.
The biggest asset you will likely have trouble separating is the marital home. As a first practical point, it is imperative that if you or your spouse stay in possession of the home, you are able to afford to do so. Our attorneys are aware that there are many memories and emotional attachments that are rooted in this home. In the moment, you may just want to keep this home since it means a lot to you, but you must ensure that you can afford to upkeep the property, as well as pay the mortgage and taxes on the property independently. If you think you would be unable to meet these obligations, we advise you not to make the financial errors of relying upon your former spouse to pay for your marital home.
While you may want to avoid dealing with separating your assets from your spouses, this is essential in a divorce proceeding. Leaving financial accounts and obligations as joint ones can create a number of devastating situations—for instance, your former spouse running up debt on credit cards or refusing to separate joint bank accounts. These situations can lead to long-term financial hardships, so our divorce attorneys strongly recommend moving forward with this difficult, but necessary step.
Another oversight that can lead to financial errors in a divorce is failing to remove your former spouse from a will or trust. During a marriage, many people will name a spouse the beneficiary of a will or trust. As it is likely that you do not want any money or property going to your former spouse after the divorce settles, it is encouraged to change your will or trust as soon as possible. Doing this simultaneously along with separating assets will avoid any mishap in the future which would give your former spouse the inheritance you wanted him or her to have while your marriage was thriving.
Taxes are another financial area that you may forget about during a divorce proceeding. In the Commonwealth of Massachusetts, it is important to know the difference between spousal support and child support payments. While you may be aware that child support may only be used for your children, and alimony may be used as spousal support, you may not be aware that alimony payments are taxable, while child support payments are not.
Also, do not forget that these payments often eventually end, and it is important that you are financially self-sufficient. For instance, child support payments may stop when a child turns 18 years old, or when a child completes their college education. Additionally, based on the type of alimony you receive, payments may end if you remarry or cohabitate with a new partner, or when you become financially stable. In the moment, you may forget that these support payments have an inevitable end date, so please be sure you are not fully reliant on these support payments.
Lastly, do not rely on your ex-spouse to help you with any of these payments. Even if your ex says he or she is going to be helpful with credit card payments, car loans, or other bills, remember that your name is on them and put yourself first. If your former spouse does not hold up his or her commitment, these costly financial errors can negatively affect your future.
If you have questions or concerns about issues involving finances, family law, or other legal issues, 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.
by Damian Turco | Sep 30, 2018 | Alimony, Child Support, Divorce, Equitable Distribution
Increasingly in our global society, legal issues of an international scope arise in family law cases. A recent appellate case dealt with one. In Ravasizadeh v. Niakosari, the Massachusetts Appeals Court decided for the first time an issue regarding enforceability of a mahr, which is an Islamic marital contract, in the Commonwealth’s courts.
The parties were married in 2000 in New York and separated in 2012, by which time they lived in Massachusetts. Before they married, they signed a marriage contract which provided that the wife would receive 700 gold coins from the husband in the event of a divorce. Under Iranian law, the wife was to receive only those gold coins and three months of alimony from the husband. The husband owned property in Iran, which he had inherited from his father. During the marriage, the parties enjoyed an upper-middle class lifestyle and owned property together.
At trial, the judge entered orders regarding custody and child support, and also ordered that the parties’ property be sold and the proceeds be split equally. The judge included in his calculations the property of the husband in Iran. In light of the equitable division, and finding that the wife could continue enjoying the lifestyle to which the parties were accustomed, the judge declined to award any alimony.
During the pendency of the litigation, the wife also filed a case in the appropriate Iranian court to enforce the mahr. The court found in the wife’s favor. The husband appealed to the Iranian court of appeals, which also found for the wife. The husband appealed to the Supreme Court of Iran, and that action was still pending during the Massachusetts litigation.
Back in the Massachusetts court, in addition to the division of property above, the trial judge also held that the 700 gold coins were the property of the wife. He ordered the husband to pay into the court in Iran the value of the gold coins in order to satisfy the judgment. Finally, the judge also ordered that even if the Supreme Court of Iran were to reverse and find for the husband, the husband must pay an amount equal to one-half of the money to the wife in order to satisfy liability.
The husband appealed, claiming that the judge had no authority over the marital contract, especially as the marriage contract was already being litigated in the Iranian courts. The husband also argued that the judge’s calculation created a disproportionate division of marital assets in favor of the wife.
The Court affirmed the lower court’s decision in part and reversed in part, holding that the portion of the decision enforcing the marital contract should be reversed, while the judge’s order dividing the rest of the property should stand. The Court noted that the trial judge properly used all of the factors involved in dividing property equitably, that the judge had broad discretion to make property decisions, and that the judge’s rationale and findings provided a detailed explanation for the conclusions he reached.
However, the Court held that jurisdiction over the marital contract laid with the Iranian courts. It explained and enforced the doctrine of comity, which allows the Massachusetts courts to recognize and enforce valid judgments rendered by a foreign court.
“It was error, therefore, to order the husband to pay the mahr to the wife in the event that the Supreme Court of Iran finds in his favor; in the alternative, it was error to order the wife to split with the husband any judgment that she receives, if the Supreme Court of Iran affirms the earlier judgment in her favor. That is to say, if the Supreme Court of Iran does not enforce the mahr, the Probate and Family Court is without jurisdiction to do so; if the Supreme Court of Iran does enforce it, the Probate and Family Court is without jurisdiction to dispose of it differently,” the Court stated.
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.
by Damian Turco | Sep 23, 2018 | Custody, Divorce
Massachusetts generally recognizes marriages and divorces between LGBTQ-identified persons, but the issues that may occur for LGBTQ-identified people are as unique and nuanced as people themselves.
Note that there is not a separate or different process for separation and divorce for same-sex couples. In the case of all marriages, whether same-sex or heterosexual, the process for separation and divorce is the same in Massachusetts. The assignment of marital property and alimony matters are decided using the same standard whether it’s a hetero or same-sex marriage, through a process called equitable distribution. Matters regarding the custody and support of children are decided using the same standard in a same-sex marriage as well, by weighing what is in the best interests of the child.
Still, specific family law issues may arise for LGBTQ-identified persons. A skilled Massachusetts family law lawyer can help you to navigate the complexity of these issues. As some examples, take the following fact patterns:
- Henry and Sue are a cisgender and straight couple. This means that Henry and Sue identify with their born and identified sex. After a four-year marriage, Sue decides that she wants to date a woman. Henry wants a divorce. Are there any different considerations that Henry needs to know?
- Josh and Ben met in college. After dating for two years, they decided to live together. At the time, they could not get married in Massachusetts but lived together in Massachusetts, had a ceremony with their families to proclaim their commitment to each other, and held themselves out in public as a partnered and committed couple. Eventually, the Commonwealth of Massachusetts recognized equal marriage. Josh and Ben know want to know: are they legally married? If so, when are they considered to have been married? Is their marriage date the date that they had a commitment ceremony? Do they need to have a formal marriage or wedding ceremony? Suppose that they divorce one day in the future—what is the date that a court would use for purposes of alimony?3. Sandra and Daryl have young twins, Sarah and Frank. One day, Sandra, a stay-at-home mom, sees her son Frank in one of Sarah’s outfits. Shocked, but still in support of her child, she begins to take Frank to receive mental help support. Eventually Frank is diagnosed with Gender Dysphoria under the DSM-V. Sandra decides that she wants to support Frank now as Frankie. Sandra wants her child to publically identify as they wish. Eventually, Daryl learns of this and is outraged. Daryl wants to force Sandra to stop “encouraging” their child to be who they are. Does either party have any legal recourse or ways to protect their transgender kid?4. Betty and Joanie identify as a lesbian married couple, married and living in Massachusetts. After 6 years of marriage, Betty travels to California for business. After drinking too much and contrary to her better and usual judgment, Betty has an affair with a bisexual man. Unbeknownst to Betty, she becomes pregnant. She tells Joanie about the incident and, upon learning that she is pregnant, decides to keep the child. The couple decides to keep and raise the child together. They track down the man from California to tell him that they are pregnant and to offer to him the chance to meet the child one day. He is upset and wants full custody. Who has the legal right to custody of the child?5. Jackie and Margaret were married in Massachusetts, but now want to divorce. After they divorce, Jackie decides to return to the in vitro clinic to try to become pregnant with the embryo that both parties created together during the course of the marriage. May Jackie use the embryos? May Jackie use them regardless of whether they contain Jackie’s or Margaret’s specimens?
While there will likely not be a big different for Henry’s divorce above, there are significant considerations that the other couples must consider. For example, Josh and Ben may not be considered to be legally married, especially if they were not really holding themselves out as married. Daryl may make his arguments against supporting his transgender child, but a Massachusetts judge would look to the best interests for Frankie and likely side with Sandra and Frankie. Betty and Joanie would likely be the legal parents of the child because a child born within a marriage is presumed to be the child of the two people in the marriage. The man with whom Betty had the affair may have a paternity burden to overcome, and would need to show that it is in the best interest of the child for him to have custody. Jackie and Margaret’s arrangement for the embryos would likely take precedent, but a mediator might be able to help the former couple to navigate this issue.
If you have an issue related to LGBTQ issues, or general family law, you should contact a competent domestic relations lawyer or family law attorney who appreciates the diversity and value of all families. Our experienced professionals may be able to work on behalf of you or your family. Please contact our offices at your earliest convenience by phone at 978-225-9030 or complete a contact form on our website. We will return your inquiry with prompt attention.
by Damian Turco | Jul 29, 2018 | Appeals, Child Support, Divorce
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.
