What are the Requirements to File my Divorce in Massachusetts?

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.

Spousal Disinheritance: New Massachusetts Case Law

The term “spousal disinheritance” refers to the ability of a person to draft a will which leaves nothing to his or her spouse upon death. In Massachusetts, this doctrine is not completely recognized—that is to say, a person cannot entirely disinherit his or her spouse, whether by design or inadvertently. One way that the Commonwealth has ensured this is through its adoption of a spousal elective share statute, which is found in Massachusetts General Laws chapter 191, section 15.

Case of Ciani v. MacGrath

That elective share statute was at the center of controversy in a recent decision by the Massachusetts Supreme Judicial Court. The case of Ciani v. MacGrath involved a claim by a widow who elected her spousal statutory share of her husband’s estate after he passed away. The decedent was survived by his wife and four adult children from a previous marriage. The husband made no provisions for his wife in his will.

After claiming her spousal statutory share, the wife also filed three separate actions for partition, seeking to force the sale of three separate pieces of real estate that her husband owned at the time of his death. As justification, the wife argued that the elective share statute provided her with a life estate in an undivided one-third of each property. The wife further claimed that any interest the children may have owned in the properties was subject to her respective life estates.

Life Estate

As the name suggests, a life estate is an interest in real estate which allows the holder of the life estate to live on and enjoy the property for the duration of his or her life. The relevant portion of the statute in question provides that a surviving spouse is entitled to one-third of the decedent’s real and personal property, but “if he or she would thus take real and personal property to an amount exceeding [$25,000] in value, he or she shall receive, in addition to that amount, only the income during his or her life of the excess of his or her share of such estate above that amount, the personal property to be held in trust and the real property vested in him or her for life.”

The husband’s children opposed the wife’s action. They claimed that the to the extent Susan’s shares of Raymond’s property exceed $25,000, § 15 reduces her interest in the real property from an outright ownership interest to an interest in the income produced by the property for her life. The children interpreted the statute as giving the surviving spouse a right to the income generated by the trust that holds the personal property and a right to the income generated by the real property, which is vested in the surviving spouse for life.

In other words, the parties’ dispute in the case centered around whether the statute gave the wife an outright interest in a life estate – following her outright interest in the first $25,000 of the husband’s property – or merely an interest in the income from that life estate. The difference comes down not only to the value of the property, but also to the type of interest given to the surviving spouse as a matter of law.

Outcome

In order to resolve this issue and determine the meaning of the statute, the high court looked to the intent of the Massachusetts Legislature in enacting section 15. “[A]ffording the surviving spouse a life estate is consistent with the cause of § 15’s enactment and the main object to be accomplished,” the Supreme Judicial Court noted. “A life estate is a well-established real property ownership interest with clearly defined rights and obligations, as well as an ascertainable value.  The income interest suggested by the children is not an ownership interest at all… Indeed, it would be inconsistent to prevent one spouse from disinheriting the other as a matter of public policy but allow the offending spouse’s heirs to do what he or she could not.” Because the wife in this case was entitled to a life estate, the high court held that she and the children were tenants in common, and that she was entitled to partition.

If you have any questions about divorce, custody, or family law issues, you may schedule a free consultation with our experienced attorneys or call (866) 995-6663 during regular business hours.

New Case Law: Marital Estate and Business Value, Pension Plans, and Inheritances

Marital property is often at the center of contention in a divorce case. Among the many types of property that may be considered part of the marital estate are retirement accounts and pension plans, business assets, and inheritance assets—and these assets are often litigated in a seriously contentious manner.

A recent Massachusetts appellate case, Dilanian v. Dilanian, addressed the issues of business assets, inheritances, and pension plans as part of the marital estate. In that case, the parties were married for thirty-one years, living a comfortably upper-middle-class lifestyle. The wife stayed home, while the husband ran a successful business, which he originally started with his father, but of which he was the sole owner by the time of the divorce proceedings. The parties filed for divorce, and while they amicably resolved issues regarding some of the marital property, including the marital home, much of the trial centered around the value of the husband’s business and the husband’s share in various assets, including pension plans.

The trial judge reviewed the husband’s income from his business, noting that in order to avoid double taxation, the husband paid himself a salary and a year-end bonus each year, leaving little funds in the company’s account as retained earnings. The husband’s financial statement reported significant income increases between 2008 and 2010, but his income was drastically reduced in 2011 and 2012, after the divorce proceedings started—yet at the same time, the amount of cash left in the business accounts increased by over $294,000, contrary to the husband’s prior practice.

The judge found that the husband had artificially lowered his income, and that the husband’s real annual income was approximately $325,000, ordering alimony to be paid to the wife in the amount of $2,000 per week. In valuing the marital estate, the judge did accept the husband’s valuation of the business, only adding in the amount of a promissory note payable to the husband for a personal loan made to the company. The husband was allowed to keep the business.

At issue were also two pension plans that the husband had contributed to during the marriage, along with an inheritance from his father, which occurred very late in the course of the marriage. The judge found that the inheritance was received so late as not to be “woven into the fabric of the marriage” and belonged to the husband. However, the judge also ordered the husband to transfer 60% of both pension plans to the wife.

The husband appealed, claiming that the trial judge abused discretion in both the judge’s valuation of the business and in giving the wife 60% of the pension plan benefits. He argued that the company’s defined contribution plan belonged partially to his now-deceased father, and thus to his sister, who received part of the father’s estate after the father died.

The Appeals Court disagreed. The Court explained: “contrary to the husband’s argument, the judge’s order will not adversely affect the interests of third persons. The plan documents establish that the beneficiaries of any portion of the defined contribution plan that belonged to the husband’s father are the husband and his sister, in equal shares. The sister, as coexecutor of the estate, signed an estate tax return taking the position that $663,961 of the plan belonged to the father. Accordingly, half of that amount ($331,981) could be claimed by the sister. Once sixty per cent of the plan is transferred to the wife, the remaining amount will be well in excess of the amount the sister claimed in the estate tax return and appears able to claim.”

The Appeals Court also found no issue with the trial judge’s valuation of the business as part of the marital estate, holding that there was nothing unreasonable in considering the $150,000 note payable to the husband part of the value of the company. The Court also disagreed with the husband on his assertions that the income imputed by the judge to the husband at trial was incorrect. “[C]ontrary to the husband’s assertion, the evidence supported the finding that the husband’s reported income was increasing until he filed for divorce in 2011, and that the husband intentionally reduced his own salary while amassing corporate earnings usually directed toward his personal income,” the Court held. “Given this evidence and the husband’s furtive financial disclosures, including his failure to prepare a 2012 financial statement for [the company], the trial judge could reasonably conclude the husband artificially reduced his income to alter his financial condition in light of the impending divorce.”

It is important to hire a competent family law lawyer to handle your unique case or answer your personal questions. If you have any questions about property distribution, alimony, divorce, or family law issues, please call our offices 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.

Financial Errors During a Divorce Proceeding

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.

New Case Discusses Emergency Housing of Families in Massachusetts

When a family is experiencing an emergency, a few things could be worse than being unable to stay in the comfort of one’s own home. Unfortunately, this is a reality for many families. Just recently, the Merrimack Valley experience devastating gas explosions which displaced many families.

Some families face this issue more permanently, however, as they struggle with homelessness: roughly 3500 people are currently served by the emergency assistance program of the Massachusetts Department of Housing and Community Development. But to what extent is that assistance available, particularly when it comes to families who fall under the Americans With Disabilities Act (ADA)? This was an issue addressed in a recent Supreme Judicial Court case, Garcia v. Department of Housing and Community Development.

The case involved a class action suit, brought by plaintiffs who contended that the department failed to promptly place the plaintiff families in shelters within 20 miles of their home communities, which would have better allowed the plaintiffs to be restored to those communities as soon as possible. The lawsuit also alleged that the department failed to comply with the ADA, among other federal and state laws, in regards to plaintiffs’ children with disabilities. The Court explained that in recent years, the Department greatly expanded the number of shelter beds provided across Massachusetts and used motel placements as a last resort only when overflow needs require it, or in limited exigent circumstances. According to the plaintiffs, this practice resulted in preventing them from receiving adequate accommodations for family members who were protected by the ADA.

At the trial level, the plaintiffs were certified as part of a class action suit by the judge. Before the completion of the discovery process, the plaintiffs asked the court for a class-wide preliminary injunction, ordering the Department to use motels to the extent necessary in order to comply with the 20-mile statutory requirement and provide adequate accommodations. The judge allowed the injunction in part, as applied to participants whose ADA accommodation requests had been approved by DHCD, but not yet implemented, and whose requests could be satisfied by a motel placement. The judge denied the injunction as to any other members of the class or claims.

The trial judge then concluded that DHCD likely had violated regulations under the ADA, requiring public entities to provide reasonable accommodations in order to avoid discrimination on the basis of disability and prohibiting public entities from providing services or siting facilities in a manner that has the effect of discriminating on the basis of disability.

On appeal, the Supreme Judicial Court first discussed the preliminary injunction. “The judge presumed that if an [emergency assistance] participant had requested a transfer as part of an ADA accommodation, and [the Department] agreed to grant the transfer ‘when administratively feasible,’ then the shelter unit where the [emergency assistance] participant resides in the interim is ‘ADA noncompliant[,]’” the Court stated. “His conclusion, however, rested on the incorrect assumption that any delay in providing a reasonable accommodation is per se unlawful. The judge also concluded that DHCD’s motel policy likely violates two other regulations, which prohibit public entities from providing services or siting facilities in a manner that has the effect of discriminating on the basis of disability…His conclusion with regard to these two regulations was premised on a factual predicate that is not supported by the record.”

The Court noted that what constitutes a “reasonable accommodation” is a factual question which must be decided on a case-by-case basis. Likewise, in this context, “[d]etermining whether unreasonable delay has occurred depends on the specific circumstances, including the length of delay, and whether the defendant has provided alternative accommodations in the interim,” the Court stated. It was error for the trial judge to rule that only an immediate transfer would constitute a reasonable accommodation, the Court held, especially on a limited preliminary record. The Court vacated the trial judge’s order to allow the injunction.

If you have questions or concerns about issues involving family law, domestic relations, 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.