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Thursday, September 30, 2010

Can I obtain an Annulment?

Annulments and Divorces both accomplish the same result, that being the end of a marriage, however the reasons for getting an annulment and the reasons for getting a divorce differ significantly. A divorce will end a marriage because of something that happened during the marriage, whether that is infidelity, abuse, an inability to communicate, irreconcilable differences, etc. An annulment will end a marriage because of something that preexisted the marriage itself. In other words, because of something that existed at the time of the marriage, an annulment will end the marriage, or treat it as if it did not exist.

There are two categories of marriages that may be annulled: "void" and "voidable." A "void" marriage legally never existed. The law approaches these marriages as so repugnant that to end it would treat it as if it actually existed. This usually means you were not legally able to get married in the first place. In Massachusetts, a marriage is "void" if the individuals are too closely related (either by blood or marital relationship, such as a woman and her stepfather), or because the husband or wife was still married to another person at the time of the marriage (the law does not allow you to have more than one spouse).

In Massachusetts, a "voidable" marriage is treated as perfectly valid until there is a court order declaring that it is invalid. This is done through a Complaint for Annulment. In Massachusetts, examples of "voidable" marriages are as follows: when one spouse lacked capacity to marry (such as a marriage to a minor without consent of parents or a judge), one spouse was impotent (this concerns the ability to engage in intercourse, not fertility), the marriage was the product of fraud, or one spouse was intoxicated to the extent that he or she did not have the capacity to consent to the marriage.

Should you have further questions about whether you qualify for an annulment, contact Attorney Justin L. Kelsey, or call 508.655.5980 to schedule a one-hour consultation.

Monday, September 27, 2010

Legal Differences Between Children Born to Married and Unmarried Parents

Last week, a colleague in North Carolina wrote about the different legal treatment in North Carolina between children born to married parents and "illegitimate" children (children not born to married parents -- many of our laws have not been updated since the dawn of the politically correct era, and label such children as "illegitimate" or "bastards," reflecting antiquated prejudices and stigmas against such children). The purpose of this post is to describe the ways treatment of such children in Massachusetts differs in some instances and is similar in others:

  • Illegitimate children may not inherit property from their father (except through a Last Will & Testament, voluntary acknowledgment of paternity, or an adjudication of paternity);
  • Illegitimate children are not eligible for survivor's Social Security Benefits as a result of the death of the child's father (42 U.S.C. § 416(h)(2)(A); M.G.L. c. 190 § 5);
  • Illegitimate children may sue for wrongful death of their deceased father (Levy v. Louisiana, 391 U.S. 68 (1968));
  • In Massachusetts, the father of an illegitimate child may NOT have his parental rights terminated for the father's failure to legitimate the child (M.G.L. c. 119 § 26(4)) M.G.L. c. 210 § 3);
  • The father of an illegitimate child does not have the same notice rights in an adoption proceeding involving the illegitimate child, unless the father has been adjudicated to be the father, but even if he has not been so adjudicated he may still file a parental responsibility claim to obtain the same notice rights (M.G.L. c. 210 § 4A);
  • The birth certificate of a child who is legitimated will be changed to show the father's name (M.G.L. c. 46 § 13);
  • Procedures for the establishment of child support are abbreviated. If a child is born out of wedlock, child support is established in paternity proceedings. If a child is born to married parents, child support is established during divorce proceedings.

Additionally, in Massachusetts there is a difference in the treatment of child support between "illegitimate" children and children born of a marriage. For "illegitimate" children, child support may be sought from the time of the child's birth. For children born of a marriage, child support may only be sought in a divorce dating back to the date of filing or date or service of the complaint for divorce.

Prenups and Postnups

With the rise in divorce rates over the past fifty years, many couples are approaching marriage with a lot more caution than past generations. Some couples are choosing to enter into agreements that, in the case that their marriage did end in divorce, would specify how to divide the assets between the spouses. These agreements are commonly called "prenuptial agreements," or "prenups," but are also known as antenuptial agreements. In Massachusetts, prenuptial agreements are valid so long as:

  • there is a full and fair disclosure of each individual's assets (you have to tell your soon-to-be spouse about everything that you have and vice-versa);
  • the agreement is considered fair and reasonable both at the time that the agreement is entered into and at the time of the divorce (you can't take everything and leave your spouse financially dependent on the state); and
  • there is no fraud or duress (you can't present a prenuptial agreement to your fiancĂ©e right before the wedding and say, "Sign this or we're not getting married.").

Additionally, courts look favorably on prenuptial agreements where both individuals are represented by their own attorneys.

Recently, the Supreme Judicial Court of Massachusetts recognized the validity of "postnuptial" or "marital agreements" as well. These "postnups" are very similar to "prenups," but are entered into after the individuals have been married. Reasons for entering into a "postnup" vary, but may make sense if one or both parties operate their own businesses and do not want to worry about the other spouse claiming an interest in the business if the parties were to get divorced.

Should you have any questions about "prenups" or "postnups," contact Attorney Justin L. Kelsey, or call 508.655.5980 to schedule an initial consultation.

Sources: M.G.L. c. 209 §25; §26; Ansin v. Craven-Ansin, 457 Mass. 283 (2010); and Osborne v. Osborne, 384 Mass. 591 (1981).

Monday, September 20, 2010

Why Are More Couples Choosing Divorce Mediation?

Courts in Massachusetts are backed up, always have been backed up, and will presumably be backed up for the foreseeable future. Because of this, divorce cases can often take over a year to complete, and the time that is actually spent in court can feel rushed due to the number of other cases. All too often a decision is made by the court leaving one spouse feeling as if he or she did not get a chance to tell the full story.

Mediation provides an opportunity for divorcing spouses to discuss the process of their separation in a more personal and private forum than in a court room, often times saving the divorcing couple thousands of dollars by avoiding expensive litigation. Divorcing spouses are able to speak to one another in the presence of the mediator, and deal with issues that a court might not want to spend too much time on.

Attorney Justin Kelsey brings his experience as a family law attorney with him into mediation in order to provide divorcing spouses with useful feedback regarding the legal issues of divorce. If mediation is successful, both divorcing spouses can go to court with a separation agreement drafted by the attorneys at Kelsey & Trask, P.C. to be reviewed by the judge before entering it as a judgment. If you and your spouse have decided that you want a divorce, but would like the process to be handled carefully and privately without having to spend a fortune and put your life on hold for years as the court process plays out, or if you have any questions as to how divorce mediation works, call attorney Justin Kelsey to schedule a one-hour consultation at 508 655-5980.

Friday, September 10, 2010

Does my Ex have a right to my inheritance if we get divorced? What is a Vaughan Affidavit?

The short answer is that Judges in Massachusetts can consider inheritance or potential inheritances when dividing property in Massachusetts. This does not mean that inheritances are split equally but they will play a part in how property is divided and may affect support orders as well. Whether an inheritance has been received or not can make a big difference in how it affects the division and support.

Inheritances Received During or Before the Marriage

In Massachusetts the division of marital property in a divorce case is controlled by M.G.L. Chapter 208 Section 34, which states in pertinent part:

"In addition to or in lieu of a judgment to pay alimony, the court may assign to either husband or wife all or any part of the estate of the other, including but not limited to, all vested and nonvested benefits, rights and funds accrued during the marriage and which shall include, but not be limited to, retirement benefits, military retirement benefits if qualified under and to the extent provided by federal law, pension, profit-sharing, annuity, deferred compensation and insurance."

This means that the Judge in a divorce case can consider how to divide all property that is in the name of either person, and this includes property that was inherited during or before the marriage. However, as part of the division, the Judges can consider the "contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates..."

As an example, if a Husband received inherited property prior to the marriage, then the Wife likely didn't have anything to do with the acquisition. But if the inheritance was then placed in a joint account or used to purchase a marital home, then it is arguable that the Wife had a part in the preservation or appreciation of the asset. This is called "merging" an asset into the marital estate. If the Husband inherited property during the marriage, then it is also possible the Wife contributed to the acquisition if she, for example, had a good relationship with the deceased. These are the types of factors that will be taken into consideration in deciding what an "equitable" division of the inherited property would be.

Inheritances Likely to be Received After the Marriage

One of the factors that the Judges in Massachusetts must consider in dividing assets and determining alimony is the "the opportunity of each for future acquisition of capital assets and income." This could include the possibility or likelihood of a future inheritance. Although inheritances aren't guaranteed because living relatives can change their wills before they die, the Court can consider how likely that is to happen, especially if the potential inheritance is significant.

In one case a party's parents objected to providing information about their estate plan arguing that because an expectancy of inheritance cannot be presently divided it should also not be discoverable. Vaughan v. Vaughan, SJC Single Justice, No. 91-485, p. 3 (1991) (unpublished).

The Single Justice in Vaughan held: "Although it is true that Allan's expectancy interests are not subject to division, a [probate court] judge, nevertheless, might properly take them into account in determining what disposition to make of the property which is subject to division."

Since the Vaughan case it has become common practice in a case where there is a potential inheritance for the relative to provide what is referred to as a Vaughan Affidavit describing in some detail the extent of their estate and their current estate plan. A properly completed Vaughan Affidavit should provide you with enough information to know whether a potential inheritance is significant enough to be considered by the Judge when determining the current division or support orders.

Tuesday, September 7, 2010

Divorce Ceremonies vs. the Divorce Nisi

CNN recently reported on the developing trend of divorce ceremonies in Japan. These ceremonies in many respects parallel weddings, with friends and relatives present and a reception afterward. However, the substance is often cathartic instead of celabratory. For example, during the ceremony both the husband and the wife together smash a wedding ring with a mallet, they eat at separate tables during the reception, and the musician at the reception sings about breaking up.



While the existence of these ceremonies seems diametrically opposed to the American way of handling a divorce (parodied here by Indigo Productions), the thinking is to provide a symbolic ending so that both the husband and the wife can move on to the next stage of their lives.

In Massachusetts, the closest thing to a divorce ceremony that we have is the uncontested divorce hearing. Very different from a trial, the uncontested divorce hearing occurs when both parties agree to the divorce and have reached an agreement on all outstanding issues. After a short approximately 10-15 minute hearing in which the Judge reviews the agreement and a basic case is entered into the record, the Judge declares that the parties have demonstrated sufficient facts to obtain a divorce and that a Judgment of Divorce Nisi will be granted thirty days after the hearing. Ninety days after that, an absolute Judgment of Divorce is entered and the couple is officially divorced. Basically, it takes four months of waiting from the last date that you go to court before you are technically divorced. How unceremonial.

Justice from the Fashion Police

The ABA Journal recently published a piece on their website concerning the appropriate dress code in court. While the "Casual Friday" phenomenon has spread through many offices over the past twenty years, courthouses have remained stubbornly formal. The article cites instances where judges have had individuals removed from the courtroom and even threatened jail time for clothing deemed inappropriate for court.

As a general rule of thumb, you can not overdress for court. While a judge will not give anyone favorable treatment for dressing up, some judges may become annoyed with someone wearing a tee shirt, ripped jeans and flip flops.

Along similar lines, many of our courthouses in Massachusetts are older buildings with some hot rooms and some cold rooms. The take-away point: dress up, and wear layers.

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