Monday, October 31, 2011

And It's All Your Fault! MA "Fault" Based Divorce #6: Adultery

Of the "fault"-based grounds for divorce in Massachusetts, adultery is probably the most complicated. Many individuals seeking a divorce wish to prove to the court that their husband or wife cheated, and therefore was not a good spouse. This certainly affords an opportunity for those seeking to air their soon-to-be ex-spouse's dirty laundry, even requiring the paramour to be named as a co-defendant. However, it requires proving the existence of an extra-marital affair, and finding out all of the details of an affair could be more hurtful than helpful to the faithful spouse.

Further, the defense of "condonation" has the potential to defeat a complaint for divorce based on adultery. In essence, this defense claims that the faithful spouse forgave the unfaithful spouse, and should be prevented from now seeking a divorce based on adultery. For example, let's say that Pat is married to Alex. Pat has an affair with someone at work. If Alex can prove that Pat had an affair, then Alex could obtain a divorce on grounds of adultery. However, if Pat wishes to defend against the complaint for divorce and remain married, Pat could use the defense of condonation if Pat can prove that after Alex learned of Pat's affair, Alex and Pat continued to live together and continued to have marital relations. If Alex was unsure about proving that the affair happened, or whether Pat could successfully defend by claiming condonation, and Alex really wants to obtain a divorce, Alex should file for a "no-fault" divorce instead.

There is no such defense to a "no-fault" divorce. All that is required is one spouse has to be able to tell a judge that there has been an irretrievable breakdown in the marriage with no chance of reconciliation.

In addition, adultery is still technically a crime in Massachusetts. This means that the defendant in a "fault" divorce based on adultery and the paramour can refuse to testify to any relations based on their 5th Amendment right not to incriminate themselves in a crime. This makes it more difficult to meet the evidentiary burden required to obtain the divorce and in the long run may not be worth the effort over the simplicity of a "no-fault" divorce.

Friday, October 28, 2011

Upcoming Seminars and Workshops: Social Security, Estate Planning, and Divorce

The friends of Kelsey & Trask, P.C. are offering some great upcoming seminars and workshops to help members of the public understand their options better when it comes to legal issues. From time to time we will try to let you know about these opportunities. Here are three that we recommend in November:

Social Security and Retirement Planning: Social Security Workshop at Council on Aging

Concord, MA - Senes & Chwalek Financial Advisors is pleased to present Kurt Czarnowski, former New England Regional Communications Director for the Social Security Administration, who will present “Social Security and Retirement Planning” at the Concord Council on Aging on Monday, November 28, 2011 at 6:30 pm.

Social Security's retirement program has been a basic part of American life for more than 76 years. Because we're living longer, healthier lives, we can expect to spend more time in retirement than our parents and grandparents did, and achieving a secure, comfortable retirement is much easier when you plan for your future.

But, despite the age, the size, and the economic impact of the Social Security system, the myths and misunderstandings about what the program is, as well as what it isn’t, are sizable. Social Security benefits were never intended to be someone’s sole source of income. Instead, they should be seen as the foundation on which to build a secure retirement.

Mr. Czarnowski worked for the SSA from 1976 until his retirement in 2010. As Regional Communications Director, Czarnowski was responsible for coordinating the Social Security Administration’s public affairs/public information activities in the six New England states. In this role, he was a frequent speaker at local and regional events for members of the public, and in 2010, he was the featured presenter on “Social Security: Your Retirement Planning Questions Answered,” the Social Security Administration’s national webinar for financial service professionals. He will provide an overview of the Social Security program and will help attendees better understand the important role it plays in achieving their retirement dreams.

Senes & Chwalek Financial Advisors is located at 57 Main Street, Concord. Renee W. Senes and David Chwalek are registered representatives of Investors Capital Corporation, Member FINRA/SIPC. For more information, please contact them at 978-369-2255.

Peace of Mind Planning for Parents Workshop

Hingham, MA - By popular request, Attorney Danielle G. Van Ess, will be repeating her Peace of Mind Planning for Parents workshop in just a few short weeks on Wednesday, November 16, 2011 from 7:30-9pm in Hingham.

If you missed the last one, here's your opportunity to attend. If you have friends who might be interested, please share this with them through email, Facebook, or however you reach them!

Registration is required, attendance is limited, and where applicable, both spouses are strongly encouraged to attend together. So line up your babysitters now and write down some questions you want to ask her.

You can learn more details about the workshop and register online here: http://peaceofmindforparents.eventbrite.com.

Divorce in Massachusetts: A 4-Part Weekly Public Education & Discussion Seminar Series

Needham Beth Israel Deaconess Hospital – Cardiology Conference Room - 148 Chestnut Street, Needham, MA 02492

Nov. 8, 2011 – Dec. 6, 2011; Tuesdays from 7:00 P.M. to 9:00 P.M.

FREE – ($20 per session suggested donation)

Who is the Seminar for?

This 4-Part Seminar Series is intended for people contemplating or going through a separation or divorce. Our members, including attorneys, therapists, mediators, and financial experts will provide you with valuable information about the divorce process in Massachusetts. There is the opportunity for Questions and Answers after each session.

What will you Learn?

Session I – The Divorce Process - Tuesday, November 8, 2011 7-9PM

- Where and how to begin:
- What needs to be filed and where?
- What is Mediation?
- What is Collaborative Law?
- How do I find the right professionals?

Session II – Finances, Assets & Alimony - Tuesday, November 15, 2011 7-9PM

- What is marital property:
- What is an equitable division?
- How do taxes affect the process?
- Will my House be sold?
- What is a QDRO?
- What is alimony?

Session III – Children & Divorce - Tuesday, November 29, 2011 7-9PM

- How much will child support be?
- How long will child support be paid?
- What is a Guardian Ad Litem?
- How do I create a parenting plan?
- What does custody mean in court?
- How do I minimize the trauma on children?

Session IV – After Divorce - Tuesday, December 6, 2011 7-9PM

- How do I get through the Divorce?
- What are some coping strategies?
- Can a divorce judgment be modified?
- How do I enforce the judgment?


And It's All Your Fault! MA "Fault" Based Divorce #5: Refusal to Provide Suitable Support

Technically, one can seek a divorce from a spouse by pleading that their husband or wife has "grossly or wantonly and cruelly refuses or neglects to provide suitable support and maintenance." This ground for "fault" divorce has a companion action: an action for separate support. However, a complaint for separate support only deals with support payments, and does not provide for the division of assets and the dissolution of a marriage, as this rarely-used ground for divorce does.

This ground for "fault"-based divorced is rarely used for a few reasons. First, there is no advantage gained when compared to a "no fault" divorce. Second, proving that your spouse has either grossly or wantonly and cruelly not provided suitable support is a very difficult. Simply putting one spouse on a very limited allowance or refusing to allow access to bank or credit card statements doesn't meet this evidentiary burden. You also have to prove that the spouse who has allegedly refused or neglected to provide suitable support actually has "sufficient ability" to provide support. This needs to be an intentional (and I would argue complete) economic abandonment.

When dealing with alimony and the division of property, any divorce action claiming that one spouse has grossly or wantonly and cruelly refused to provide suitable support and maintenance, or one filed on "no fault" grounds but with identical facts, will likely have a motion for temporary orders filed soon after the complaint seeking temporary alimony payments.

Thursday, October 27, 2011

And It's All Your Fault! MA "Fault" Based Divorce #4: Intoxication

In order to prove this "fault"-based ground for divorce, you need to convince the court that your spouse has "gross and confirmed habits of intoxication caused by voluntary and excessive use of intoxicating liquor, opium, or other drugs." The potential benefit of filing for divorce on this ground is to highlight the issue of drug or alcohol use which could also be relevant to any custody arrangement for children.

This is not to say, however, that a court would treat a case filed on "no fault" grounds any differently if one parent has an addiction that might affect his or her ability to care for the children. If custody is contested, the court will have to look at both parents to determine what is in the best interests of the children, regardless of whether the case if filed as a "no fault" divorce or a "fault"-based divorce. Because of this, along with the difficulty of proving a "gross and confirmed habit of intoxication," this ground for divorce is rarely used in favor of "no fault" divorce.

Wednesday, October 26, 2011

And It's All Your Fault! MA "Fault" Based Divorce #3: Imprisonment

This "fault"-based ground for divorce goes hand-in-hand with a finding of "guilty" in a criminal matter, followed by a sentence of five years or more in prison. It is not the amount of time that is actually served, but rather what the sentence is that matters. Proving this grounds for a fault divorce is generally straightforward.

Interestingly, if after a divorce, the imprisoned spouse is pardoned for his or her crime(s), the marriage is not restored.

As with most grounds for divorce, there is no advantage over "no fault" divorce. Proving that a spouse has been sentenced to five or more years in prison is slightly more difficult than meeting the evidentiary burden required in a "no fault" divorce (only that one spouse is able to tell the court that his or her marriage is irretrievably broken down with no chance of reconciliation).

Tuesday, October 25, 2011

And It's All Your Fault! MA "Fault" Based Divorce #2: Desertion

Desertion is one of two "fault"-based grounds for divorce that is used with some regularity in Massachusetts (the other being cruel and abusive treatment). In order to prove desertion, you need to be able to show that your spouse voluntarily left home without justification at least one year prior to filing the complaint for divorce, and has no intention of returning home. The spouse seeking a divorce needs to be able to testify that, during the one year period after his or her spouse left the marital home, there was hope of reconciliation.

Service of the complaint where personal service by a constable is impossible (because the location of the deserting spouse is unknown to the deserted spouse) is accomplished by publishing notice of the divorce case in a newspaper located in the location where the now-missing spouse was last known to reside.

The advantage of pleading "desertion" over a "no fault" divorce is that the act of deserting could warrant an unequal distribution of the assets. If successful, you have convinced a judge that your ex-spouse did not have justification for leaving, but left anyway, and that could result in the Judge awarding you property that they deserted as well.

The disadvantage is that proving desertion is somewhat more complicated than a "no fault" divorce. You must prove the elements of desertion to be divorced on those grounds, and if you fail to prove that the deserting spouse left without good reason, for example, then the Judge could deny your divorce. "No-Fault" divorce is much easier to prove because the evidentiary burden is met when one spouse simply tells the court that the marriage has been irretrievably broken down with no hope of reconciliation.

Monday, October 24, 2011

And It's All Your Fault! MA "Fault" Based Divorce #1: Cruel and Abusive Treatment

Since August 2010, "no fault" divorce has been available in all fifty states. Prior to the creation of "no fault" divorce, an individual seeking a divorce would need to file and prove a "fault"-based ground for divorce, proving to the court that it was the other spouse's fault. This resulted in bringing an often already-contentious relationship into the adversarial forum of a courtroom.

"No fault" divorces shift the focus from who is at fault to facilitating the transition to life after marriage. Basically, the court cares about who gets what, planning for where the kids are, and whether there is a support order (child support or alimony), and less about whether the husband or wife ruined the relationship.

In Massachusetts, "no fault" divorce has been the law since the 1970s, and has become favored by judges and attorneys. However, Massachusetts does retain the following traditional "fault"-based grounds for divorce:

1. Cruel and Abusive Treatment
2. Desertion
3. Imprisonment for More than Five Years
4. Gross and Confirmed Habits of Intoxication
5. Grossly or Wantonly and Cruelly Refusal or Neglect to Provide Suitable Support and Maintenance
6. Adultery
7. Impotency

While only the first two are still used with any consistency, the other five "fault"-based grounds still exist. Over the next few days, we will break down all seven "fault"- based grounds for divorce in Massachusetts, and the advantages and disadvantages of each, starting with cruel and abusive treatment:

Cruel & Abusive Treatment:

Cruel and abusive treatment is the most common "fault"-based ground for divorce in Massachusetts. Prior to "no-fault" divorce, cruel and abusive treatment was used in most divorce cases because the standard is vague enough to allow a divorce when there was no other alternative. Today, cruel and abusive treatment cases usually involve a history of domestic violence.

As with any "fault"-based ground for divorce, this ground could put the defendant spouse on the defensive and will likely prevent settlement. Although cruel and abusive treatment does not require proving a crime, it does require admission or proof of some behavior that amounts to the standard and not too many people will readily admit to being abusive. For these reasons it is usually advisable to plead "no-fault" divorce even when there has been cruel and abusive treatment. Conduct can still be admitted as evidence if relevant to the property division, but by beginning the case as a "no-fault" case you make settlement much more likely.

Wednesday, October 12, 2011

Can I Modify my Alimony under the New Law? - A FlowChart

UPDATE: This infographic has been updated for greater accuracy: http://kelseytrask.blogspot.com/2011/12/modification-under-alimony-reform-act.html

The following flow-chart depicts the decision tree for determining whether you qualify for a modification of a Massachusetts alimony order under The Alimony Reform Act of 2011. You always have the ability to reach an agreement for modification, but in the event that you and your ex-spouse disagree about whether a modification order should be changed, this chart can help you figure out whether a court will change your order.

You may reprint or distribute this Infographic on your website so long as the copyright and contact information for Kelsey & Trask, P.C. remains attached to the bottom of the image.

To reprint copy and past the following code:

Click here for more information about Modifications in Massachusetts.

Tuesday, October 11, 2011

Infographic: The Alimony Reform Act of 2011 - Simplified

You may reprint or distribute this Infographic on your website so long as the copyright and contact information for Kelsey & Trask, P.C. remains attached to the bottom of the image.

To reprint copy and past the following code:

Click here for more information about Alimony in Massachusetts.
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