Can You Appeal a Temporary Order During Divorce?

If you have issues in your case that require an order sooner than later, filing a motion for temporary orders and having it heard by the judge may be the solution. While trial in a divorce case doesn’t ordinarily occur until the case has been going on for 12 to 15 months, you can get into court for temporary orders in the first few months. It typically makes the most sense to ask for temporary orders in cases with custody and support issues, when real estate mush be sold, or when there’s a need for an order for one party to vacate the marital home. But, what to do if the judge rules incorrectly at the temporary order hearing?

Joe and Jane are getting divorced. During the proceedings, the judge issued a couple of temporary orders with which the parties disagreed. Joe took exception to the probate judge’s temporary abuse prevention order against him. Likewise, Sam objected to the probate judge’s allowance of Cindy’s motion that he vacate the marital home during their divorce proceedings.

Are temporary appealable before the parties are granted a final judgment of divorce?

Both the Appeals Court and Supreme Judicial Court may review orders by the Probate and Family Court. The appellate process is costly, complex and time-consuming, so alternatives such as asking the probate judge to reconsider an order or seeking a modification of an order should be initial considerations.

A spouse aggrieved by a probate court order may appeal the order to the Appeals Court or SJC within 30 days of its entry.[1] Interim or temporary decisions by a probate court judge are called “interlocutory orders” and do not constitute a final resolution of the parties’ divorce proceedings. Under Massachusetts law, a party aggrieved by an interlocutory order of a probate court judge may seek relief from the order within 30 days of its entry before a single justice of the appellate court.[2] Further appeal of a single justice’s ruling may be sought before the full Appeals Court or the Supreme Judicial Court.

Because interlocutory orders can be modified during the pendency of a divorce case, appellate courts are hesitant to hear reviews of such orders. Motions for temporary support, orders to vacate the marital home and discovery-related rulings, consequently, are usually viewed as unappealable until a final judgment of divorce issues. Limiting appeals of temporary orders is justified, the Supreme Judicial Court has held, because it prevents a party from ongoing disruption of proceedings through appellate review of issues that prove unimportant in the long run.[3] Interlocutory judgments not appealed from are open to revision on appeals from final judgments only if the Appeals Court of Supreme Judicial Court deem the final judgments were erroneously affected by the interim decrees.[4]

A party requesting an appellate court to review an interlocutory order must demonstrate that the consequences of applying the order would be harmful and could not be remedied when the proceedings are over or through a regular appeal.[5] This is referred to as the present execution doctrine.

Appellate courts hearing interlocutory order appeals do so without the benefit of the record of lower court proceedings, so the appellant petitioning for review must provide:

  • a request for review giving the date and nature of the order;
  • a statement of issues;
  • a statement of relief requested; and
  • a copy of the order at issue.

Additionally, the petition to a single justice requires a maximum 15-page memorandum of law that includes portions of the records pinpointing the issues the petitioner wants the justice to review.

Want to speak with a divorce lawyer about your case? Schedule a free consultation with our office and you’ll learn how the law applies to your facts and circumstances. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.

[1] M.G.L. c.215, §9.

[2] M.G.L. c. 231, §118.

[3] Borman v. Borman, 378 Mass. 775, 779 (1979).

[4] M.G.L. c.215, §14.

[5] Maddocks v. Ricker, 403 Mass. 592, 598 (1988); Metzler v. Lanoue, 62 Mas. App. Ct. 655 (2004).

Valuing Partnerships and Professional Practices in a Divorce

How is a share in a partnership valued in a divorce? How are professional practices valued in a divorce?

People facing a divorce are often concerned about their financial futures. One such financial concern regards how shares in a partnership are valued in a divorce. Parties may also wonder how professional practices are valued in a divorce.

Say, for example, that Taylor and Alex have shares in a financial management business. Also, Taylor owns a medical practice. Now that they are divorcing, Taylor and Alex want to know how their assets will be divided, and specifically, how the shares in the financial management business and the medical practice will be divided.

In Massachusetts, assets are divided on an equitable basis.[1] A judge’s decision as to what is equitable will not be reversed unless “plainly wrong and excessive.”[2] A court may assign all or any part of the estate of the other, including, but not limited to, retirement benefits, military retirement benefits, pension, profit-sharing, annuity, deferred compensation, and insurance.[3] The definition of estate is broadly defined, however.[4] In fact, Massachusetts courts allow the division of premarital property and post-marital property on a case-by-case basis.[5] With regard to the division of shares in a partnership, courts will generally interpret G.L. c. 208 § 34 to include partnership assets within the scope of the possible assets that may be divided in a divorce.

Shares of a partnership and business practice interests are part of the marital estate and may be valued by a valuation expert to assess the market value of the asset. A professional practice, like a medical practice, is considered in Massachusetts to be subject to division during the divorce process.[6] Massachusetts courts may order one of the parties in a divorce to relinquish their share of ownership in the business and receive payment either as a lump sum or in a series of installment payments. A court may order that the business be sold and the spouse receives the profits. One spouse could buy-out the business from the other spouse or offset the business with other assets.

During the valuation process, there are generally three valuation methods: the market approach (estimates business value by comparing the business to a similar business that is recently sold); the income approach (estimates business value by converting economic benefits into a value); and the asset approach (estimates business value based on the assets and liabilities of the business).

In the above example, Taylor and Alex have several possible options afforded to them. A Massachusetts Probate and Family Court will divide the estate equitability based upon the parties’ needs and what is most equitable based on their individual case.

Want to speak with a divorce lawyer about your case? Schedule a free consultation with our office and you’ll learn how the law applies to your facts and circumstances. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.

[1] Adams v. Adams, 459 Mass. 361, 371 (2011) (citing to Bowring v. Reid, 399 Mass. 265, 267 (1987))

[2] Adams, 459 Mass. at 371 (citing to Redding v. Redding, 398 Mass. 102, 108 (1986))

[3] M.G.L. c. 208 § 34

[4] Rice v. Rice, 372 Mass. 398, 400 (1977) (holding that an estate is all property to which the party holds title, however acquired.)

[5] Moriarty v. Stone, 41 Mass. App. Ct. 151, 156 (1996) ; Brower v. Brower, 61 Mass. App. Ct. 216, 218 (2004)

[6] Goldman v. Goldman, 28 Mass. App. Ct. 603, 613 (1990).

Massachusetts Long Arm Statute in Divorce and Custody Cases

Jack and Jen were married in Massachusetts and lived together as husband and wife for four years, during which they had one child, Jonah. Jen has left the marital home on her own. Jack wants to file for divorce, and he also wants custody of Jonah and wants Jen to pay child support. The wrinkle? Jen has just moved to California, and Jack is unsure how to begin the process. Should he file for divorce in Massachusetts, or consider hiring an experienced family law attorney in California? And how might the child support order be affected by the parties’ continental divide? We’ll need to look to the Massachusetts long arm statute to see if Massachusetts has personal jurisdiction over both parties before proceeding.

First, Jack may file the divorce action in Massachusetts based on Jack’s domicile, as he has lived in Massachusetts for more than one year. In addition, the cause of action for the divorce also took place in Massachusetts. In order to serve Jen with process, Jack may turn to two resources: Rule 4(e) of the Massachusetts Rules of Domestic Relations Procedure, and the Massachusetts Long Arm Statute.

Rule 4 (e) deals with service of process in divorce cases. Service of process allows the defendant proper notice of the divorce action against him or her. The section of the rule authorizes service of process in the following manner:

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. [1]

The Massachusetts Long Arm Statute [2] also provides Jack with an important remedy: it describes the circumstances under which a Massachusetts court may exercise jurisdiction over a person who has engaged in certain business or actions in the Commonwealth. Personal jurisdiction, which allows the court to bind a defendant to the court’s orders, is available under the Massachusetts Long Arm Statute in divorce cases. Specifically, the statute applies to anyone who was “maintaining a domicile in this commonwealth while a party to a personal or marital relationship out of which arises a claim for divorce, alimony, property settlement, parentage of a child, child support or child custody; or the commission of any act giving rise to such a claim[.]”[3]

The same section of the Massachusetts Long Arm Statute will apply to Jack’s claim for child support against Jen. So long as Jack continues to live in Massachusetts, he may petition the Massachusetts Probate and Family Court for child support, and the Court may exercise personal jurisdiction over Jen.

Should Jack later seek a modification of the child support order (or any alimony order which may be granted), he may use the next section of the Long Arm Statute. Section (h) of the statute provides for personal jurisdiction over a defendant “having been subject to the exercise of personal jurisdiction of a court of the commonwealth which has resulted in an order of alimony, custody, child support or property settlement, notwithstanding the subsequent departure of one of the original parties from the commonwealth, if the action involves modification of such order or orders and the moving party resides in the commonwealth, or if the action involves enforcement of such order notwithstanding the domicile of the moving party.” [4]

Another important law to aid Jack with the enforcement of any child support order he may receive is the Uniform Interstate Family Support Act. First, this law provides the court which issues the order with continuing jurisdiction:

A court of a State that has made a child support order consistently with this section has continuing, exclusive jurisdiction over the order if the State is the child’s State or the residence of any individual contestant or the parties have consented in a record or open court that the tribunal of the State may continue to exercise jurisdiction to modify its order, unless the court of another State, acting in accordance with subsections (e) and (f), has made a modification of the order.[5]

Second, the Uniform Interstate Family Support Act provides that a state’s child support order will receive the “full faith and credit” of every other state—in other words, other states will be able to enforce the order. In Jack’s case, this gives the California courts the power to enforce any child support order rendered by the Massachusetts courts.

What to speak with a family law attorney about your case? Schedule a free consultation with our office by calling 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.

[1] Mass. R. Dom. Rel. P. 4(e)

[2] Mass. Gen. Laws ch. 223A, s. 3

[3] Mass. Gen. Laws ch. 223A, s. 3(g)

[4] Mass. Gen. Laws ch. 223A, s. 3(h)

[5] 28 U.S.C. 1738B

Valuing Automobiles and Personal Items During Divorce

During the divorce process, most parties want to ensure that the end of the marriage won’t result in the end of their preferred lifestyle. How are automobiles treated during property division? How are other personal items of value, such as jewelry and antiques valued in a divorce?

Say, for example, that Alex and Jamie were married for twenty years and have filed for divorce. They appreciate their belongings and want to know how their material items will be divided. Alex is a collector of antiques and also owns two expensive automobiles. Jamie drives the family van and also owns jewelry. Because they cannot agree on the division of their property, they want to know how the antiques, vehicles, and jewelry will be divided by a Massachusetts family court during the divorce process.

If the parties in a divorce agree to their own division of property, the courts in Massachusetts will usually support the fair and reasonable distribution of their agreement related to the property division. However, if the parties cannot agree, Massachusetts courts will make the determination as to how assets should be divided. This division is known as an “equitable division.” Equitable does not necessarily mean that each party is entitled to “equal” or 50/50 division of assets. Instead, the courts will use several factors to determine the fair division of assets. Although the list is not exhaustive, courts determine what is fair by examining the following factors[1]:

  • length of the marriage;
  • conduct of the parties during the marriage;
  • age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of the parties;
  • opportunity of each for future acquisition of capital assets and income;
  • amount and duration of alimony;
  • present and future needs of dependent children of the marriage; and
  • contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit.

If one former spouse believes that she is entitled to more property than a judge initially awarded, another judge may order that without a clear and adequate explanation for the amount of property awarded between the parties, the division of property may not be equitable.[2]

If they cannot agree, Alex and Jamie would experience the Massachusetts court-imposed “equitable division” standard. Their twenty years married, their conduct during the marriage, and the personal items and property shared between them, including the antiques, cars, and jewelry, would be evaluated and divided.

The value of the personal items is dependent on the circumstances which arrant division of property in recognition of the marital partnership concept [. . .][3] Therefore, Alex’s and Jamie’s tangible property could be valued at a fair market value rate, which means that the amount that the property would sell within an open market. If the amount of an item cannot be determined, a judge could look to professional appraisals, receipts, and other material documentation to reach the property monetary amount.

If you have any questions about the divorce process or assignment of property, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.

 

[1] Mass. Gen. Laws ch. 208 § 34

[2] Bowring v. Reid, 399 Mass. 265, 268 (1987) (remanding a decision so that a judge may articulate the rationale for the Section 34 alimony and property awards, especially because the plaintiff alleges that the defendant was unfaithful and abusive and the plaintiff’s contribution to the marriage, her needs, and her sources of income were not considered.); See, Redding v. Redding, 398 Mass. 102 (1986).

[3] Davidson v. Davidson, 19 Mass.App.Ct. 364, 370 (1985) (citing to Inker, Walsh & Perocchi, Alimony and Assignment of Property: The New Statutory Scheme in Massachusetts, 10 Suffolk U.L.Rev. 1, 8 (1975))

Adultery as Grounds for Divorce

One of the most distressing and devastating challenges to any marriage is the challenge of adultery. Though some marriages survive the stressful impact of one spouse’s unfaithfulness, others simply cannot.

Adultery is defined by Black’s Law Dictionary as “the voluntary sexual intercourse of a married person with a person other than the offender’s husband or wife.” For good reason, adultery is a fault ground for divorce in many states, including Massachusetts.

Adultery is also considered a crime in Massachusetts. The relevant criminal statute reads, “A married person who has sexual intercourse with a person not his spouse or an unmarried person who has sexual intercourse with a married person shall be guilty of adultery and shall be punished by imprisonment in the state prison for not more than three years or in jail for not more than two years or by a fine of not more than five hundred dollars.” 1

The case of Commonwealth v. Stowell upheld the constitutionality of the criminal adultery statute in Massachusetts. 2 In that case, the defendant was convicted of adultery after being arrested for having sexual intercourse with a man who was not her husband. On appeal, she alleged that the adultery statute violated the Constitution’s fundamental right to privacy, but the Supreme Judicial Court disagreed. While the Court noted its awareness that adultery is rarely prosecuted as a crime, it also noted that did not mean the statute was invalid or judicially unenforceable.

In terms of divorce actions, some specific procedural considerations apply when a party pleads adultery as a fault ground. First, adultery must be specifically pleaded in the Complaint. Second, circumstantial evidence may be used to prove adultery. In one case, for example, the husband observed another man leave the husband’s home on several occasions while the wife was home, and on one of those occasions, the wife wore a kimono and slippers. The court allowed the case to proceed on the basis of adultery. 3

It should be noted, however, that pure speculation is not enough to prove allegations of adultery. In one case, for example, the court found that simply having ample opportunity to engage in adultery, by way of a husband’s many visits with another woman, did not establish that adultery occurred. 4 “The fact that the parties had ample opportunity to commit adultery is not, of itself, grounds for divorce,” the Court noted. “There must be some evidence of speech or conduct indicating an adulterous disposition.” 5

Another issue to discuss is that of condonation. If a spouse forgives a party who engaged in an adulterous relationship and continues to live together as a married couple, he or she is will not be able to plead adultery as a ground for divorce. This is provided that the spouse has full knowledge of the adulterous behavior, and that the behavior is not repeated after condonation.

 

1 Mass. Gen. Laws ch. 272, s. 14

2 Commonwealth v. Stowell, 389 Mass. 171 (1983).

3 Murphy v. Murphy, 244 Mass. 110 (1923).

4 DiRosa v. DiRosa, 350 Mass. 765 (1966).

5 Id., at 765.

 

Impotence as Grounds for Divorce in Massachusetts

A touchy subject to discuss, but one which becomes an issue from time to time, is the subject of impotence as grounds for divorce. In Massachusetts, a spouse may choose to request either an annulment or a fault-based divorce on the grounds of the other party’s impotence. Choosing to file for divorce means the spouse may request the division of marital property in line with the applicable domestic relations statutes.

According to Black’s Law Dictionary, impotence means “the incapacity for copulation or propagating the species,” for purposes of medical jurisprudence. It is important to discuss here that impotence does not mean infertility for purposes of family law and divorce. Infertility, referring to an inability to conceive a child, is not a ground for a fault-based divorce in Massachusetts. However, impotence, referring to an inability to copulate, is grounds for divorce or annulment.

Only a few (generally older) cases have addressed the issue of impotence as fault grounds for divorce in Massachusetts. The cases typically deal with issues of impotence which exist at the time of marriage, and not issues which develop later in the marriage.

In one case, the husband filed for divorce based on impotency where sexual intercourse was impossible without causing the wife such pain as to endanger her health. 1 In that case, after the parties lived together for nearly seven years, a physician advised them to separate. The husband’s request for a divorce was granted. In another case, the husband was likewise granted a divorce where, unbeknownst to him, the wife suffered from congenital physical abnormalities which prevented her from engaging in sexual intercourse. 2

If you have any questions about divorce or other domestic relations issues, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.

1 S. v. S., 192 Mass. 194 (1906).

2 M. v. M., 342 Mass. 773 (1961).