Is Marital Fraud Grounds for a Civil Suit? New Massachusetts Case

In a recent case, the Massachusetts Appeals Court decided whether marital fraud–that is, fraudulently inducing another person to marry–constitutes a valid civil cause of action. In the case Shea v. Cameron, the parties were married in 2007, after a two-year consensual romantic relationship. The wife owned her home individually. In 2010, she transferred title to the home, to be owned jointly with the husband, and the husband’s name was added to the mortgage as well.

In 2011, the wife discovered that the husband was having an affair. She filed for divorce, then withdrew her complaint and filed for an annulment instead. During a deposition in the proceedings, the husband admitted that he was unable to love the wife very early in the marriage and that he did not believe her to be his “one true love.” In 2013, the parties entered into a joint stipulation of annulment, which ended the marriage.

Unbeknownst to the husband, the day before the annulment, the wife filed a civil complaint related to the parties’ stipulated fraud. She sued him for false claims of love, emotionally harmful conduct, and improper use of the couple’s finances.

In Superior Court, the judge ruled for the husband. While the judge acknowledged that the husband made some misrepresentations about his love and commitment to the wife, he also concluded that the court could not intrude into the private and personal relationship of the parties, nor could the court provide relief. The judge granted summary judgment for the husband. Following that decision, the judge then reported the case to the Appeals Court.

On appeal, the Court first addressed whether the stipulation of fraud had any impact on the civil claims. While stipulations of fact are binding on the parties and respected by the courts, the Appeals Court explained, stipulations of law (such as the one regarding fraud in this case) are not binding on the courts.

The Court then discussed the substance of each of the eight claims brought by the plaintiff. Those claims included fraud, misrepresentation, battery, infliction of emotional distress, undue influence, and unjust enrichment. The Court first explained that Massachusetts law precludes claims of breach of a marriage contract, and that any civil tort action based on such a breach is unavailable in Massachusetts. As a result, the Court held that the wife’s claims based on fraud were precluded.

Next, the Court reviewed the wife’s claims for infliction of emotional distress, holding that an adulterous affair (even if it were meant to cause emotional harm) is not “extreme and outrageous” as required in order to prove a claim for emotional distress. Likewise, the husband’s failure to disclose past sexual or romantic history did not rise to the level of that tort claim.

Finally, the Court considered the wife’s claims for damages for the exchange of money and her home between the parties over the course of their relationship. The wife claimed that she would not have given ownership of her home to the husband had it not been for the husband’s coercive or fraudulent conduct. The Court held, however, that the record showed insufficient evidence in this regard, upholding the trial court’s grant of summary judgment.

“As evidenced here, not all human actions in the context of the dissolution of a marriage have an avenue for legal recourse, no matter how much anger, sorrow, or anxiety they cause,” the Court noted. “This court respects the difficult work done by Probate and Family Court in disentangling marital relationships. The process of divorce provides an avenue for alimony and the equitable distribution of property. By voluntarily withdrawing her complaint for divorce and entering into a stipulation and judgment of annulment, [the wife] chose to forgo that process and her claims could not survive in Superior Court.”


Merger Versus Survival of Separation Agreements

Experienced family lawyers guide spouses in emotionally fraught divorce proceedings toward a resolution that terminates the marriage. A separation agreement is a crucial part of that process.

A separation agreement memorializes the terms of that resolution and articulates clearly the parties’ mutual rights and obligations. The separation agreement may either be incorporated or “merged” into the judgment of divorce granted by the Probate Court or may “survive” as an independent contract. It is crucial that the parties understand the difference between merger and survival, and that the separation agreement submitted to the probate judge be carefully written to reflect the parties’ goals.

Regarding a merger: A separation agreement whose terms, by stipulation, merge into the judgment nisi of divorce entered by the Probate Court lacks independent significance. Such an agreement is subject to a party’s motion for modification of support, or an order of contempt for noncompliance from the probate judge. Because the Probate Court is empowered to revise its own judgment in this case, modification and contempt are possible.

Let’s contrast a separation agreement whose terms explicitly articulate the parties’ intent that the provisions merge into the judgment of divorce, but that the agreement stand alone as a contract with independent legal significance. In this case, modification and contempt are not as readily reached by the Court. In fact, a party seeking to modify a surviving separation agreement must demonstrate “something more” than a material change of circumstances warrants a revision. A surviving agreement may be enforced either in Probate Court or in a civil proceeding in Superior Court, as with any other breach of contract action.

For the separation agreement to survive a judgment of divorce, the Probate Court must find that it is fair and reasonable; that it is not fraudulent or the product of coercion; and that the parties agreed on its finality. If that bar is met, the parties’ provisions for dividing the marital property will not be subject to further division by the Probate Court, absent “countervailing equities.” An example of that, allowing for judicial revision, would be one of the former spouses being in danger of becoming a public charge.

A separation agreement can be drafted in such a manner that some of its terms survive the judgment of divorce, whereas other aspects merge into the judgment. If the separation agreement is vague regarding the question of its survival, generally, such agreements are held to survive the subsequent divorce judgment that incorporate its terms. Examining the terms of the agreement in its entirety, the parties’ intent is the decisive factor, rather than the court’s predilection. Inartful drafting of the agreement that contains the word “merged” does not in of itself mean the parties wanted the judgment of divorce to absorb the agreement, if contrary indications of intent are expressed or implied elsewhere in the agreement that the parties meant for the agreement to survive.

Child-related matters, such as visitation, custody and child support, remain subject to modification and contempt orders by the Probate Court, as the former spouses cannot bargain away their children’s right to support from either of the parents.

If you have any questions about divorce or family law issues, call 978-225-9030 during regular business hours or complete a contact form and we will respond to your phone call or submission promptly.

A Part-time Job and Its Effect on Alimony or Child Support

In what ways might a part-time job or second job affect alimony or child support payments?

Under Massachusetts divorce law, a spousal support award is not set in stone. Rather, it may be altered by a petition for modification to the court initiated by either party. To prevail, the petitioner must demonstrate that an adjustment of the alimony judgment is warranted because of a material change of circumstances since the earlier judgment was entered.

Likewise, a court may modify an earlier judgment regarding the care and custody of minor children if it determines a material and substantial change in the parties’ circumstances has occurred requiring an adjustment that would be in the children’s best interests. As noted in Section III. (A.) of the 2017 Massachusetts Child Support Guidelines, among the occurrences that justify modifying a child support order are:

  • An inconsistency between the amount of the existing order and the amount that would result from the application of the guidelines;
  • previously ordered health care coverage is no longer available;
  • previously ordered health care coverage is still available but no longer at a reasonable cost or without an undue hardship; and
  • access to health care coverage not previously available to a parent has become available.

Concerning both alimony and child support, a common basis for complaints for modification brought by one party involves the other party either taking on a second job to supplement his or her main income or accepting a part-time position.

In ordering one of the parties in a divorce to pay alimony to the other in the first instance, the court weighs numerous factors, including the length of the marriage, the parties’ age and health, their employability and the sources and amounts of income. To arrive at the parties’ incomes concerning an alimony award, a judge may attribute income to a party who is unemployed or underemployed.

In a spousal support modification action, any income earned by the party paying alimony from a part-time job, second job or through overtime is presumed not to be material to a redetermination of alimony, so long as the party is working more than a “single full-time equivalent position,” and the second job or overtime pay began after the initial spousal support award was entered.

In one case, the former wife appealed her court-ordered rehabilitative alimony payments to her ex-husband. The Appeals Court found the probate court judge had not abused his discretion in making the award, but had erred in determining her ability to pay the amount of spousal support by considering her income both from her full-time position and a part-time job she took on after the judgment of divorce had entered. The appellate court vacated the alimony award and remanded the case to the trial judge. The court held that a party working full-time cannot be considered “underemployed” based on the pay level from a post-judgment second job unless a judge finds supporting evidence that “a basis exists for rebutting the presumption of immateriality applicable to the income earned from the second job.”

The 2017 Massachusetts Child Support Guidelines allow a court considering the best interests of the children to weigh “none, some, or all overtime income or income from a secondary job” from the calculation of gross income for child support purposes. A presumption exists that any part-time job, overtime pay or second-job income not be considered in a future child support order if the payor or recipient parent began receiving such income after the initial child support order was entered.

If you have any questions about alimony, child support, or any other issues regarding family law, 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.

Automatic Restraining Order Upon Filing for Divorce

Suppose Jack filed for divorce, and Jill is left confused, unaware of what comes next in the divorce proceedings. Jill is served the divorce papers and realizes that there is an automatic restraining order as part of the summons and complaint. Frantically, she calls a divorce attorney, wondering if a restraining order is all about. Could it mean she cannot have contact with her ex-spouse? Is it possible that she won’t be able to access her financial accounts or her home?

As divorce attorneys, we receive many inquiries regarding the initial paperwork filed in a divorce proceeding. Whether you filed for divorce or are defending a divorce action, you may have heard that Massachusetts Probate and Family Court attaches an automatic restraining order against the defendant spouse at the time of the divorce filing. What is an automatic restraining order; how can you follow it; and what are the sanctions for not following it?

In every Massachusetts divorce case, there is an automatic restraining order. This automatic restraining order is present when the plaintiff-spouse files for divorce, and when the defendant-spouse is served the initial divorce complaint it as part of the Summons. The automatic restraining order is present throughout the entire divorce case, unless modified by agreement of the parties or order of the Court. Upon entry of the divorce judgment or decree, the automatic restraining order is terminated and vacated.

The automatic restraining order, which is codified as Massachusetts Supplemental Probate and Family Court Rule 411, provides for certain restrictions to parties in a divorce. It states the following:

“(1) Neither party shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of any property, real or personal, belonging to or acquired by either party, except: (a) as required for reasonable expenses of living; (b) in the ordinary and usual course of investing; (d) for payment of reasonable attorney’s fees and costs in connection with the action; (e) written agreement of both parties; or (f) by Order of the Court.

Selling your stocks? Giving your children some of your antique jewelry? Hiding your ownership in a partnership or business? All of these could be considered by the Court to fall under the protections of the automatic restraining order, and engaging in these acts despite the order may expose you to sanctions by the Court.

Additionally, Rule 411 prohibits either party from incurring any further debts that would burden the credit of the other party—this includes things like unreasonably using credit cards or bank lines, as well as borrowing against a credit line or the marital residence. Rule 411 also prohibits the spouses from changing the beneficiary of any life insurance policy, pension or retirement plan, or pension or retirement investment account, as well as from causing the other party or the minor children of the marriage to be removed from the coverage.

The goal of an automatic restraining order is to ensure that the parties’ do not make any drastic changes during the divorce proceedings. If one party would do something to give themselves an unfair advantage in the proceedings, or on the other hand, unfairly place the other party at a grave disadvantage, this could greatly impact the outcome of a case.

A question you may have is: what happens if you or your ex-spouse violates the automatic restraining order? Is there a way to make the non-compliant party comply? Are there any repercussions for violating the order?

If either party violates the automatic restraining order provision of Probate Court’s Rule 411, the other party can either file a formal complaint for contempt with the Court. A complaint for contempt arises when a party does not agree with a court order. It is a judge’s decision as to whether or not the party has violated the automatic restraining order. If so, the party will be held in contempt of court, and the judge will impose sanctions based on the severity of the violation. Sanctions are court-ordered penalties for disobeying a law or rule—in this case, they may range from fines to unfavorable rulings on certain motions.

If you need assistance with an automatic restraining order or have any questions about divorce or family law issues, call 978-225-9030 during regular business hours or complete our online contact form, and we will respond to your phone call or submission promptly.

Social Media Posts During Divorce

Most people have at least one social media account, seeing that there are various forms of social media on several platforms–Facebook, Instagram, Snapchat, and Linkedin, among others. People facing a divorce often ask: does the use of social media have an impact on a divorce proceeding? As a simply answer, it might. In fact, with the click of a mouse, you could sabotage your divorce or child custody action.

Suppose that Jack and Jill are getting divorced. Jack and his new girlfriend go to Europe. Jack’s girlfriend has family in Europe, and her family paid for their flights. While there, Jack and his girlfriend explore several prominent destination spots. Jack’s girlfriend posts pictures of their trip to her social media account. Jack’s girlfriend is a professional photographer and manages to capture shots of their food and surroundings to make their location and lifestyle seem glamorous. Unfortunately, Jack’s girlfriend tags Jack in these photos on Facebook, so that the photos appear on his page too.

On the surface, it would appear that Jack has money for an expensive vacation – what the photos do not reveal is that Jack spent no more than $400 on the entire trip. The photos do not reveal Jack working remotely during his trip, although he does work during his trip because he cannot afford to be away from work. Although Jack’s Facebook is private or mostly private, Jack’s social media friends are social media friends with social media friends of Jill’s. Ultimately, Jill sees these photos. When Jack requests alimony from his ex-spouse Jill, Jack’s request is denied because the judge sees that Jack has the means to travel to Europe and dine at French restaurants.

Email and text messages are admissible in court, and Massachusetts courts may use evidence from social media accounts against a party in a divorce action. One rule to consider in a divorce: if you would not want all parties and the judge to see your posts, then the post should not be uploaded. As such, it is important to change your settings to not allow someone else to tag you in photos or upload evidence to your Facebook “wall” without your permission.

Another consideration deals with employment and income, which may come up in regards to issues of alimony, support, or property assignment. For example, Linkedin is a social media platform that may show that your ex-spouse has another job, which may mean that your ex-spouse has more income than originally realized.

Yet another way that social media can play a role in family law deals with its impact on custody considerations. Imagine that you are a parent fighting for your child’s custody. What would happen if a judge saw images of you drinking with friends at the time when you were presumed to have been watching your children? This information could damage your custody case. Even if you weren’t drinking, but were with people who were drinking – the appearance of your lifestyle could affect how you are perceived in court.

What if you and your spouse agreed to raise your child on a “healthy” diet, but you’re posting pictures of your child eating cookies and junk food? Imagine that your child was unruly and took his coat off during the winter, and you posted a picture of your child without a coat on in the snow? Does this show poor parenting?

There are countless situations and photographs that could be spun in the favor of your ex-spouse. As such, it is important to note that even if you are a wonderful parent or even if you are accurate in your financial reporting, a judge could make a decision that is not in your favor. After all, the judge is a human and appearances matter.

If you have a social media account, you should not delete it once your divorce litigation begins. However, it is important to refrain from using your accounts because your words and posts may be used against you in your divorce action or child custody case. You also should not use dating sites or applications until your divorce is finalized.

Many people believe that if an account is private or if the settings are adjusted, then no one can see their posts. This is untrue. Many social media platforms change their digital privacy settings often, which could lead to the revealing of your “personal” photographs or posts. In addition, in this connected world in which people live, there are often very few degrees of separation between people. You may have a friend who has a friend who reveals your personal information to your ex-spouse.

If you are seeking a competent divorce lawyer or family law attorney, 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 your phone call or submission with prompt attention.

Stopping Your Divorce When You and Your Spouse Have Changed Your Minds

Let’s set the scene: you and your spouse have already filed for divorce. As you are still friendly, you plan on getting a no-fault, and are awaiting your court date. As time is passing by, you are thinking about what is best for the both of you, your family, and your future. You both decide that you no longer want to go through with the divorce. What do you do?

At this stage in court proceedings, when there has been no involvement of a judge, dismissing a divorce is a very easy process. In this case, we are going to assume that you have filed a joint petition for divorce. If so, you and your spouse can go to the court and execute a Stipulation of Dismissal. When a settlement is reached in a pending case, a voluntary stipulation of dismissal is generally filed by the parties to resolve the action.

On the other hand, this may be a situation when there has been court involvement and perhaps a divorce already has been approved by a court in the Commonwealth. As in other states, there is a mandatory waiting period after a Judgement of Divorce in Massachusetts before it becomes final. This period is known as a nisi period. During this 90-day nisi period, the parties in divorce are given the option to change their mind before the divorce becomes final. During the nisi period, the marriage has not been dissolved. In an interesting Massachusetts case, Vaughan v. Vaughan, the Court held that where one party died during the nisi period, the other party was considered the surviving spouse of the deceased party.

If you decide to change your mind regarding a divorce which was already granted by the court, the parties can file a motion to dismiss the divorce judgment. A judge may only grant a motion to dismiss a divorce complaint during the nisi period if there is “sufficient cause.” For example, in one case, Mailer v. Mailer, the court held that issues with financial aspects of a divorce would not rise to sufficient cause to grant the motion of dismiss. However, an exception to this is if both parties in a divorce file a memo to agree to dismiss the divorce—there, no hearing is required, and the motion to dismiss will be granted.

Assuming you are the party who is seeking to dismiss a divorce action on behalf of yourself and the other party, it is necessary to file a statement of objections to the judgment of divorce during the nisi period.

If you need more information about dismissing a divorce or about family law generally, 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.