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Showing posts from October, 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 Pa…

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 …

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 spous…

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,"…

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).

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 uneq…

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…

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:

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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:

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Click here for more information about Alimony in Massachusetts.