WE HELP FAMILIES RESOLVE CONFLICT PEACEFULLY


Wednesday, May 29, 2013

Can I get Divorced in Massachusetts if I was married in another country?

Assuming you are a resident of Massachusetts for 1 year, or you meet one of the other jurisdictional requirements to have your case heard in Massachusetts, the fact that your marriage was solemnized in another country will not usually make a difference.

With a few exceptions (such as going to a foreign jurisdiction to get married when you wouldn't be considered competent in MA), a foreign marriage is recognized as a legal marriage in MA so long as it is recognized as a legal marriage in the country of the marriage.  Under M.G.L. c. 207 s 36 you can file a foreign marriage certificate with your town clerk to have it recorded, if you want vital records to have a record of your marriage.

However, that usually isn't necessary in order to file a divorce.  You just have to file an original or a certified copy of the marriage certificate with the Complaint for Divorce.  If the original or certified copy is not in English then I would also recommend having a certified translation.

If you only have a copy of the marriage certificate with a certification or seal, you will need to obtain a certified copy of the certificate.  A regular copy won't be sufficient to obtain a divorce.  If you don't know anyone in the originating country that can contact a local clerk for you, then I would suggest starting with the embassy for that country to find out the best way to obtain a certified copy.

It may take a few weeks to get a certified copy, but if you need temporary orders due to some immediate concern then you may be able to get a Judge to allow your case to open by filing a Motion to Allow Filing of Certified Copy Late.  In the Motion you would explain why you need to be heard now, but can't obtain the certified copy right away.  If you convince a Judge that you are doing everything in your power to obtain the certified copy and will file it upon receipt, then the Judge may be willing to allow the divorce case to open and issue temporary orders.  Until the certified copy is filed, though, a Judge won't issue a final Judgment of Divorce.


Wednesday, May 15, 2013

Can a parent visit their children if there is a restraining order protecting the other parent?

In a recent Supreme Court decision, Moreno vs. Naranjo, SJC-11070 (2013) , the SJC dismissed an appeal as moot for a 209A order that had expired, but addressed the underlying issue anyway in order to provide guidance to District Court judges.  In Moreno the District Court judge had considered the impact of the order on visitation and had ordered a 6 month order instead of 1 year because of the likely impact of the order on the relationship between the defendant and the child.  The SJC indicated that this consideration was improper.

In deciding the length of an order, the only consideration should be the "time reasonably necessary to protect from abuse the plaintiff or any child in the plaintiff's care or custody."   This doesn't mean that an order can't include provisions for visitation, but only that the impact the order has on visitation shouldn't affect the choice to issue the order or for how long.  That choice is dependent solely on the necessity of the order to provide protection from abuse to the plaintiff.

When a restraining order, also know in Massachusetts as a section 209A Abuse Prevention Order, is obtained by a Plaintiff, it will include orders relating to children if the parties have minor children together.  Usually a 209A restraining order will order the Defendant to stay away from any children and award custody of the children to the Plaintiff.

In Massachusetts, the District Court issues most 209A restraining orders but the Probate & Family Court can as well.  Provisions relating to minor children can be amended to allow visitation, but typically the District Court would prefer that the Probate & Family Court deal with those provisions.  If a party requests a parenting time schedule from the Probate & Family Court, the Judge in that court can amend the restraining order through a process we discussed in this previous post.

The provisions relating to visiting the children don't change the orders preventing abuse of the parent, but practical considerations (like pick-up and drop-off of the children) may need to be considered to avoid violation of no-contact provisions.


Saturday, May 11, 2013

Should you Give your Ex-Wife a Mother's Day Card?


I stopped at the grocery store yesterday to pick up a few items.  Since this weekend we celebrate Mother's day I made the obligatory trip down the greeting card aisle.  Of course, the seasonal section was a sea of pastel colored cards ranging from religious to sappy to funny (or appropriately politically correct kinda-funny).  There were cards separated into sections "For My Wife", "From Daughter", "From Son", for grandmothers and even great-grandmothers.


But there weren't any cards in the aisle labeled "For My Ex-Wife."

Why not?

One Judge in Plymouth County has a standard speech he gives divorcing spouses right before he approves their final divorce.  Judge James Menno tells divorcing spouses who are also parents: "Today I divorce you as husband and wife, but you will never be divorced as parents."  Divorced parents are still Mom and Dad, and nothing changes that.

In many cases (maybe even most cases), divorce involves a breakdown in trust between the two parties.  Co-parenting with someone with whom you don't have a trusting relationship can range from difficult to impossible.  In Collaborative Divorce and Mediation, we often focus on the ways in which couples can build communication and enough trust to co-parent effectively after their divorce is final.

One of the most powerful skills that couples can work on to build trust and cooperation is acknowledgement.

We've all heard the complaints that separated parents have about the other parent.  Parenting together is difficult enough, and parenting apart is bound to lead to even more misunderstandings.  But how often do you hear separated parents praise each other's efforts.  How different would conversations between exes be if they began with an acknowledgement of what the other parent is doing well, instead of starting in on what's wrong.  When you acknowledge someone else's strengths they are more likely to be understanding when you have disagreements, because they can trust you to see both the good and the bad.

Even in difficult cases most people will still admit that the opposing party is a good parent.  However, the absence of a Mother's Day card category "For My Ex-Wife" suggests that very few ex-husbands make a point of telling their ex-wife that they're a good mother, even on the day that is specifically designed for that.

So while we wait for greeting card companies to figure this out, buy your ex-wife some flowers or a brunch or a generic Mother's Day card.  Even a cliched Mother's Day gift will make a big impression because even though you're not married anymore she is still a Mom, and that deserves recognition.


Wednesday, May 8, 2013

Who pays for health insurance after the divorce?

Even if you can stay on an ex-spouse's health insurance (which we cover in this previous post), there are two potential costs of staying on an ex-spouse's insurance.

The first is the actual cost of the plan. If the plan participant would qualify for a lower cost plan, for instance if the plan participant is single with no children, then the "additional cost" must be paid by either the plan participant or their ex-spouse. Usually the ex-spouse seeking this coverage will pay the "additional cost" but this must be defined in a court order or agreement.

In addition, the IRS defines excludaible fringe benefit costs to include only costs for spouses and other dependents. Ex-spouse coverage is not excludible and is therefore a taxable benefit. Although often overlooked by employers, many employers have started to treat these ongoing benefits to ex-spouses as taxable income to the employee.

For more information about the taxation of health insurance benefits read the following article: Health Insurance Taxation Issues Post Divorce by Justin Kelsey and Chris Chen.


Thursday, May 2, 2013

What is the standard for amending child support orders?

The process for amending a family court order in Massachusetts begins with the filing of a Complaint for Modification.  If you are able to reach agreement on the amendment of a child support order, you can save time in court by filing an administrative action called a Joint Petition for Modification of Child Support.  Although this process may soon be available for other joint modifications, right now it is only allowed for child support, as we discussed in this previous post.

If you are unable to reach an agreement, then the court will decide if an amendment to your support order is appropriate.  The typical standard for amending a court order is  whether or not there has been a "significant material change in circumstances."   Up until recently, we often advised clients that a good rule of thumb for determining significance is whether or not the change in circumstances would result in a 20% change in the child support order.

However, a 2013 SJC decision in Massachusetts, Morales v. Morales, SJC 11104, differentiates this standard for modification of Child Support orders. In child support modification cases, the SJC has indicated that "modification is presumptively required whenever there is an inconsistency between the amount of child support that is to be paid under the existing support order and the amount that would be paid under the Guidelines."

Despite language that is different in the Massachusetts Child Support Guidelines, the Court indicated that the statutory language is controlling.  The Court explains a bit of the history behind how the Guidelines may have ended up with a differing standard, but absent some change in the statute, the Court indicates that the trial court must follow the "inconsistency standard" as contained in M. G. L. c. 208, § 28.

While this seems to imply that even a $5 change would require the court's attention, the cost of going to court should be a factor in determining a practical modification standard in each individual case.

In addition, it is also important to note that a Judge can deviate from the guidelines so long as they make a finding regarding the reason deviation is warranted.  Since Judges are given broad discretion with these findings by the appeals court, Judges may use this language to find ways around granting changes in cases that they believe are wasting their time.  In other words, common sense should still prevail.

To calculate what would be paid in a particular case under the current Guidelines visit our Child Support Calculator.


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