According to a Boston Globe article, Massachusetts Attorney General Martha Coakley filed a request with the U.S. District Court last Thursday, February 19, 2010, to rule on the constitutionality of the Federal Defense of Marriage Act (DOMA). The reasoning behind the A.G.'s request is that DOMA forces Massachusetts to discriminate against same-sex spouses in order to maintain certain federal funding for programs like Medicaid and Veteran's burials.
These are only two examples of how DOMA affects same-sex spouses. Despite Massachusetts law granting same-sex couples the right to marry, there are Federal benefits that traditional spouses enjoy which same-sex couples do not because of DOMA. Many of these differences are related to tax benefits for spouses. For example, spouses can transfer property between each other without certain tax consequences where non-spouses cannot.
This can be a particularly difficult issue in same-sex divorces as it relates to retirement accounts. Because retirement accounts are defined by Massachusetts law as martial property, divorces often result in a non-taxable transfer of retirement funds between ex-spouses. When the division is completed by a Qualified Domestic Relations Order (QDRO) the transfer does not result in any tax consequences. But transfers between non-spouses of retirement funds are treated like a liquidation resulting in income tax and a tax penalty (if the plan participant is below retirement age). Since same-sex spouses are not spouses for federal purposes retirement account funds cannot be transferred without tax consequences.
Although you are unlikely to hear a lot of discussion relating to same-sex divorce in support of the same-sex marriage debate, the discrimination against same-sex spouses becomes even more evident when these spouses request the protection of divorce laws.
Even if you believe that states should have a right to decide the same-sex marriage issue state-by-state, it's hard to support discrimination by the Federal government of same-sex couples in the states that have already decided in favor of same-sex marriage. DOMA effectively throws the weight of the Federal government against same-sex marriage rather than remaining neutral on the issue. Good luck to the Mass A.G. in restoring at least some balance.
In Massachusetts the statutory waiting period after a Judgment of Divorce and before the divorce becomes final (or absolute) is called the Nisi period. After a divorce case settles or goes to trial, a Judgment of Divorce Nisi will issue and it will become Absolute after a further ninety (90) days. This waiting period serves the purpose of allowing parties to change their mind before the divorce becomes final. If the Judgment of Divorce Nisi has issued but not become final yet, and you and your spouse decide you don't want to get divorced, then you can file a Motion to Dismiss and the Judgment will be undone. Although many of my clients who are getting divorced think the idea of getting back together with their ex sounds crazy, I have had cases where this happened. In addition to offering a grace period to change your mind, the Nisi period has three other legal effects: 1. The most obvious effect of the waiting period is that you cannot remarry during the Nisi period, be
If one of the parents in a custody case has a criminal record, the types of crimes on their record could have an effect on their chances of obtaining custody. In custody cases the issue is always going to come down to whether or not the best interests of the child might be affected. In the most extreme case, in which one parent has been convicted of first degree murder of the other parent, the law specifically prohibits visitation with the children until they are of a suitable age to assent. Similarly, but to a less serious degree, in making custody and visitation determinations the court will consider crimes that would cause one to question the fitness of a parent. These types of crimes would obviously include any violent crime convictions which could call into question whether the children would be in danger around a parent who has shown themselves to resort to violence when faced with conflict. In addition, drug and alcohol abuse offenses would call into question a parent
If you filed a Joint Petition for Divorce in Massachusetts then you will participate in an uncontested divorce hearing and the Judge will then issue Findings of Fact the day of the hearing. A Judgment of Divorce Nisi will issue after thirty (30) days, and it will become Absolute after a further ninety (90) days. This means that if you file a Joint Petition for Divorce you are not legally and officially divorced until 120 days after the divorce hearing date. If you filed a Complaint for Divorce then your case will end either with a trial (if you don't settle) or an uncontested divorce hearing (if you settle). If you reach an Agreement, then a Judgment of Divorce Nisi will issue and be effective as of the date of the uncontested divorce hearing, and it will become Absolute after a further ninety (90) days. This means that if you file a Complaint for Divorce you are not legally and officially divorced until 90 days after the divorce hearing date. Therefore, for 90 - 120 day