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Showing posts from September, 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 …

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 wrong…

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); andthere is no fraud or duress (you can't present a prenuptial agreement to your fiancĂ©e right befor…

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 regar…

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 e…

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 agreeme…

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.