by Damian Turco | Feb 13, 2019 | Custody, Separation
Warning: Themes of domestic abuse.
Jacob and Leah are 7-year old twins. Their parents, Jeff and Hannah, were married for eight years before finally deciding to pursue a separation and ultimately a divorce.
The relationship Jeff and Hannah was tumultuous. For the latter five years of their marriage, Hannah struggled with depression. Jeff did not support Hannah’s mental health needs. In fact, Jeff was abusive towards Hannah. He was verbally abusive most frequently, but also, was occasionally physically abusive when he would drink, which was often. On one occasion, the local police showed up to their home for a domestic violence incident in which Jeff attempted to throw the house phone at Hannah’s head, barely missing her. Jeff’s substance abuse issues caused most of the domestic violence and other abuse issues in their home.
Finally, Hannah decides to file for divorce. The divorce forced Jeff to reevaluate his life and has since become sober and takes anger management courses. He sees a therapist regularly. The probate and family court must decide where to place the twins, Jacob and Leah. One of the questions for the court to consider is whether Hannah or Jeff may have temporary or permanent custody of their twins, Jacob and Leah.
Jeff wants to know: does he have a chance at having Jacob or Leah placed with him? Can he have custody of his children?
Best Interest of the child
Massachusetts law requires that children are placed with parents or a parent or put into circumstances that are in the best interest of the children. The law states that in issuing a temporary or permanent custody order, the probate and family court must consider any evidence of past or present abuse toward a parent or child as a factory that is contrary to the best interest of the child.¹ This does not mean that a parent with a history of abuse cannot have custody of a child. It does mean, however, that the court must view what is in the best interest of the child from the viewpoint of that child, taking several factors into account before awarding an order of temporary or permanent custody.
In Massachusetts, “abuse” is either attempting to cause or causing bodily injury or placing another in reasonable fear of bodily injury.² This definition of abuse applies to acts between a parent and another parent or between a parent and a child. If a court determines by a preponderance of the evidence that a pattern of abuse has occurred, a rebuttable presumption is created whereby the abused parent is not the parent that a court would consider to be in the best interest of the child for sole custody, shared legal custody, or shared physical custody. The presumption may be rebutted with evidence that the placement would be in the child’s best interest.
Legal Custody vs. Physical Custody
In the fact pattern above, Jeff attempted to cause injury to Hannah during their marriage. He was frequently verbally abusive, especially when he was drunk. He also placed her in fear of imminent serious bodily injury. Although he took these actions when he was drinking, a court would likely find that he was abusive. Depending on the extent of abuse the court finds, a court may find that Jacob and Leah should not be placed in shared legal custody with Jeff. If the mother is granted sole legal custody, Jeff will still be allowed to see medical records and be part of their lives but would not make any major decision for them. For the sake of our fact pattern, let’s assume the court finds extensive abuse during the marriage. The court awards the mother sole legal custody and then moves on to a physical custody determination.
Visitation Time
In this fact pattern, the court orders temporary supervised visitation to Jeff. Supervised parenting plans can vary widely. Some are supervised by other family members while some are supervised by professionals. The visits in this hypothetical might be an hour or longer and happen monthly or weekly depending on the severity of Jeff’s previous abuse.
After a reasonable period of time successful supervised visits, Jeff can file for shared physical custody. He could do this by convincing the judge that he is sober and has overcome his anger management issues, supported by the supervisor’s notes and possibly his therapist. He may also wish to note that he has never been abusive toward his children. If there are other facts about Hannah’s behavior that would support the argument that she should have less time, he should assert them at this point.
Essentially, Jeff must convince the judge of a material change in circumstances (his sobriety and treatment in this case) and that a more equal parenting plan is in the best interests of Jacob and Leah.
There are many complexities to family law, especially within the issue of complex child custody. As such, it is important that you hire a competent family law attorney to handle your unique case or address your concerns. If you have questions about complex child custody issues, divorce, abusive marriages, child law, or custody law, you should hire a seasoned attorney licensed to practice law in the Commonwealth of Massachusetts. Consider meeting with an attorney from our office to discuss you case. Just contact our offices by phone at (866) 995-6663 of schedule a consultation online.
¹ Mass. Gen. Laws. c. 209 s. 38
² Id.
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 | May 23, 2018 | Agreements, Divorce, Separation
In some cases, an uncontested divorce may be the most cost-effective and efficient option.
Mike and Barbara have been married for nine years. After meeting in college, they were married when Mike was nineteen-years old and Barbara was twenty-years old. They now realize that they both married too young and probably should never have married each other—their relationship has turned into more of a friendship, and they both want an amicable and uncontested divorce. Mike and Barbara do not have children, and both work as teachers in the public school district in the community in which they live. What is their best option for a divorce in Massachusetts?
In Massachusetts, an uncontested divorce means both parties are in alignment with the major issues that often appear in a contested divorce. These typical topics where issues may be present include topics that involve property, alimony, child custody, child support, and more. If the major issues regarding these topics do not exist, both parties may begin the divorce process together. To obtain a divorce in Massachusetts, the first step is to determine that the parties live in Massachusetts. Assuming that Mike and Barbara mentioned above are able to meet the residency requirement for a Massachusetts divorce, then they will be able to divorce in the Commonwealth.
The next step in a divorce is to draft a separation agreement. A separation agreement defines the way that the couple will divide property, handle alimony, structure the child custody arrangement, and determine child support. When a divorce is uncontested, this means that both parties have no qualms or concerns about these topics in the divorce. Therefore, the parties may proceed forward by including their separation agreement into the filing for the divorce. The separation agreement must be signed and notarized both parties. Mike and Barbara can determine the way that they want to divide their property. They can define the amount of alimony that they wish to establish. If they had children, they can determine who has custody, how they will share custody, and the manner in which they wish to raise their children. Mike and Barbara will attach their agreement to the filing for their uncontested divorce.
Prior to the hearing for the divorce, Mike and Barbara can also file a joint petition to the Probate and Family Court. Typically, in Massachusetts, one party in a divorce who wishes to divorce the other must file a petition with the court to provide the other party of the divorce. The party filing the petition then waits for the spouse to respond to the petition. In an uncontested divorce, however, the parties can complete the petition together. They must complete several statements in support of their petition, such as financial statements. Once this step is complete, the parties must file the documents with the probate and family court in the Massachusetts county where either party resides. If Mike and Barbara complete the joint petition together, they can include the joint petition with the separation that they file. They can state that they had an irretrievable breakdown of marriage as the reason for their divorce. There is no fault to their divorce – they simply wanted to end it together.
Next, once the documents are completed and filed by the parties, the Massachusetts Probate and Family Court reviews the separation agreement and joint petition that are filed with the court. The judge schedules a hearing, usually rather quickly, or approximately within 30 days. During the hearing, the judge confirms that both parties agree to what is included within the filing. The judge also reviews the separation agreement to ensure that the agreement is fair to the parties. If the judge determines that the agreement is not fair to the parties or the children of the parties, the judge may decide that both parties must modify their agreement to make it fair or equitable. If the parties do not agree, then the divorce is not granted. If the parties agree to the modified provisions, then the separation agreement becomes binding. If the agreement is binding, then divorce is granted a few months after the judgment.
Even if you have an agreeable relationship with your spouse or partner, it is important that you find an attorney with the knowledge and experience to protect you, your family, and your assets. If you have any questions about divorce, family law, child support, alimony, or more, please contact our firm. You may schedule a free consultation with an experienced family law lawyer today. Call our offices at 978-225-9030 during business hours or complete a contact form online. Do not hesitate to call our offices today.
by Damian Turco | Nov 18, 2017 | Agreements, Divorce, Separation
For just about every couple seeking a divorce, the separation agreement is an exhausting and time-consuming document. With the right attorney, the process can be smoother, but it is imperative that a person seeking a divorce contact an attorney experienced in these matters. Your attorney should work toward drafting a separation agreement on your behalf. But what provisions ought to be included?
Separation agreements should address several mandatory statutory factors related to alimony, benefits, funds, estates, property, and insurance.[1]
These mandatory factors may also include other provisions. For example, separation agreements may include custody provisions, such as the legal and physical custody of any children. They may include living arrangements, parenting plans, emergency decision planning, religious training, and more. Agreements may also include provisions related to child support, such as the amount, costs for extracurricular activities, and taxation information. Separation agreements may also include provisions related to a child’s education expenses and involvement in college applications or financial aid. The agreement may also include provisions related to the health, dental, and vision insurance for children.
Separation agreements may also include alimony provisions, such as the amounts, tax effect, and possible future modification of alimony. Provisions related to the former spouse’s health, dental, vision, and life insurance may be included. Also, provisions related to the marital home may be included. This encompasses joint ownership provisions, homeowner’s insurance provisions, maintenance provisions, and more. If the parties possess other shared income, the parties should include provisions related to that additional property as well. This may include pension and retirement, securities, bank accounts, and family business provisions. Separation agreements may also include provisions related to taxes, debt, liabilities, and the procedure for any future disputes.
After the separation agreement is written, the agreement is presented to a Massachusetts judge.[2] After a hearing about the merits of the separation agreement, the judge may decide to accept the separation agreement.[3] The judge may decide that a separation agreement is sufficient if the separation agreement contains provisions for custody, support and maintenance, for alimony and the disposition of marital property, and for what is in the best interests of any children, if applicable.[4] This is a broad standard, and each drafted separation agreement must be specific to the parties because every family has unique challenges and responsibilities.
Separation agreements must also be “fair and reasonable.”[5] Some of the many factors that establish whether a separation agreement is reasonable include the following: the consideration of financial provisions as a whole; the context of how the negotiation of the agreement occurred; the background and knowledge of the parties; and the agreement in the context of the statutory factors for property division and spousal support.[6]
If you are seeking answers to your questions about separation agreements or general family issues, 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.
[1] Mass. Gen. Laws ch. 208 § 34
[2] Mass Gen. Laws ch. 208 § 1A
[3] Id,
[4] Id.
[5] Dominick v. Dominick, 18 Mass.App.Ct. 85 (1984)
[6] Id.
by Damian Turco | Oct 28, 2016 | Separation
Ella and Everett have been married for over two decades and have grown children. They are living separately after amicably deciding to go their separate ways. Although neither has any desire to go through the process of divorce, they both would like to file for legal separation.
In Massachusetts, Ella and Everett, along with many other couples who wish to be legally separated, are out of luck. Massachusetts courts do not issue orders of legal separation—so, Ella and Everett are either married or unmarried in the eyes of the law.
Couples may, however, come up with an agreement among themselves which will govern the terms of their living separately. A separation agreement is a contract between two married people which spells out those terms. Typically, the separation agreement might contain the following provisions, among others:
- Identifying information about the couple and brief information about the marriage;
- A clause stating that the parties seek to live separately;
- Clauses determining how the parties will agree to divide their marital property, including real property, personal property, tangible and intangible property;
- Clauses determining whether either party will pay support to the other, and if so, in what amount and for how long;
- Clauses regarding custody, support, and visitation of any minor children.
It is essential that any separation agreement be signed after careful consideration of its terms, with clear understanding of the terms, and that both parties sign the agreement willingly, without any indication of duress or coercion. It is also essential that the parties have the opportunity to consult with independent legal counsel before signing.
In addition to signing a separation agreement, in some limited instances the parties might also petition the Probate and Family Court for separate support. Separate support is statutorily provided in three different circumstances:
- When a spouse fails to support his or her spouse suitably, and does so without justifiable cause;
- When one spouse deserts the other; or
- When one spouse has justifiable cause to live apart from the other.[1]
The process of filing for separate support begins with a Complaint, and soon thereafter the parties must file financial statements with the Court and also send to the other party. It must be established that the parties are married and that there is justifiable cause for the parties to be living apart; it is not required that the parties already be separated at the time of filing. The Court has authority to award separate support and/or child support; make custody decisions; and determine whether health insurance must be provided by one spouse for the other and/or for the minor children involved.
If you and your spouse are considering separating, it is advised to consult with a knowledgeable family law attorney. You may schedule a free consultation with our office by calling 978-225-9030 during regular business hours or completing a contact form here, and we will get back to you at our earliest opportunity.
[1] Mass. Gen. Laws, ch. 209, s. 32
by Damian Turco | Dec 15, 2015 | Separation
If you’ve lived in the greater Newburyport area for any extended period of time, or even just vacationed on Plum Island, you likely are familiar with the pink house off Plum Island Turnpike, heading out to the island past the airport. I know I have driven past it many a time, usually peering at it with curiosity.
What on earth is that house doing over there? Clearly no one lives there now, but when did someone actually live there? It looks like it might have been cute at one point, but it looks fairly dilapidated now. What is it like inside that house anyway?
I know now I am not alone in having these thoughts about that house. I realized that this morning when I read Amanda Hoover’s article on Boston.com. She too wondered as she drove past that house growing up as a child, dreamed of rehabilitating and living there. And she is not the only journalist who’s fancied the property. Kate Bolick, A writer for the New York Times, wrote about the house just last week.
But, as each journalist explained in their respective article, the backstory of this property created even more fascination for me, a Newburyport divorce lawyer. That’s because, as I learned, this house is the product of a 1925 divorce.
The divorce, however, was not well done–at least not for the wife who received this house. This house, which is referred to as a “spite house” was given to the wife by the husband in settlement of the case. While this generally doesn’t happen today, it does happen sometimes and when it does, it is part of a grander equitable distribution plan.
In the 1925 case, something clearly went terribly wrong for the wife. From what we know, it appears the wife agreed to settle the case for an exact replica of the marital home, which the parties owned in downtown Newburyport. The husband agreed, the case concluded, and the husband fulfilled his obligations in the agreement by building an exact replica of the marital home for the wife.
Just one problem… He built it in the middle of nowhere, in the middle of marshland, without running fresh water. Used to living in the center of downtown Newburyport, surrounded by businesses, shops, and restaurants, the wife was now left miles away from the bustling town Center, without the utilities to live. The articles do know that there was in fact running water… running salt water. Clearly, the husband did not take the high road.
How could this have been avoided? Better drafting. While it is clear in this case is the husband was intent on making the wife’s life needlessly difficult post-divorce. And he did so in a way that eluded his wife, attorneys on the case, and the judge. Was it foreseeable that he would attempt to do something like this? We simply don’t know at this point. But, the situation highlights the importance of good, unambiguous drafting in separation agreements.
While many family law lawyers would take the position that you simply can’t plan for every possible situation, we are able to include language in settlement agreements to address the unforeseeable. For example, rather than having language that states, “husband shall build wife a house which is a replica of the marital home,” the language could state something like, “The husband shall have constructed a home for the wife in substantial conformity to the marital home. Such property shall be built and situated within the city of Newburyport at a location the wife selects and communicates to husband. The wife shall be limited to plots of land offered for sale and available at a fair market value of $500,000 or less. Wife shall communicate her selection to husband and husband shall effectuate the purchase of said property on behalf of wife and in wife’s sole name, within three months thereafter, immediately recording proof of title at the Essex County Registry of Deeds, and shall immediately apply for all necessary permits, with construction commencing no later than three months following the closing on said plot of land. Husband shall ensure completion of the house within one year from the closing on said land purchase, and the property shall be in substantial conformity with the specifications of the marital home, both in form and function. The Husband shall bear the entirety of any and all costs of acquisition and construction of the property, including all ancillary fees and costs and shall receive said property without lien, mortgage, or other encumbrance, and the husband shall indemnify and hold wife harmless against any such instance or related debt. Husband shall ensure the project is fully completed, including the connection of all utilities, and that all usual and customary filings of completion shall be completed by husband on behalf of wife. The party shall reasonably cooperate to effectuate this provision, and may submit any disagreements in interpretation or compliance with this provision to the Essex County probate and Family Court for determination.” See the difference?
When you represent a client from the beginning of the case through its conclusion, you learn a lot about the individual parties, their children, and the relationship. A good lawyer has the ability to foresee problems and draft a settlement agreement eliminating them. As we have heard many times before and as was highlighted by that little pink house, the devil, unfortunately, is in the detail.
Damian Turco is a divorce and family law lawyer practicing in Newburyport, Massachusetts. To schedule a consultation with Attorney Turco, call the Newburyport office at (978) 225-9030.
