Wednesday, February 13, 2013

DOMA Creates Problems for Second Marriages

Often poorly written legislation has unintended consequences.  DOMA (the so-called Defense of Marriage Act) allows states to ignore marriages from other states or countries, when those marriages are between two people of the same gender.  We've previously written about the problems that this can cause in same-sex divorces: Same-Sex Marriage is Getting Easier, But Same-Sex Divorce is still Tricky.  But the problems don't just end there.

Since some states won't allow you get divorced from a same-sex marriage, residents of those states have been told that they are essentially not married.  Does this mean that they can re-marry in that state?  The answer is yes, but not without potential consequences.

To illustrate the risks, consider the following hypothetical scenario:

Jane Smith and Janet Doe have been living together for years in Texas.  They have friends in Massachusetts and when they heard about the ballot initiative in Maine to legalize same-sex marriage they decided to move to New England and be a part of that political movement.  They lived in Massachusetts for a year and got married in Massachusetts while traveling to Maine often to be involved in protests.  After the Maine initiative passed, Jane wanted to continue protesting in other states, but Janet wanted to settled down somewhere and start a family.  Realizing they had different goals Jane and Janet separated.  Jane moved back to Texas.  After a particularly bad winter storm, Janet decided Massachusetts wasn't for her and she moved to Florida.

While living in Texas Jane fell in love with John Lee, and they are now engaged.  Jane has been told that Texas doesn't recognize her same-sex Massachusetts marriage and she is free to marry John in Texas.  Jane and John get married without Jane dissolving her first marriage.

What happens if DOMA is repealed?

If DOMA is repealed then states like Texas are going to be required to recognize out-of-state marriages even if they are same-sex marriages.  At that point Jane will have two marriages recognized by Texas law.  This could possibly make her second marriage void.  It also might create a violation of the bigamy laws in Texas, because Jane will be married to two people and still living with her second spouse.

What happens if Jane and John move to a state that recognizes same-sex marriages, like Maine?

A state like Maine which allows same-sex marriage would recognize the original marriage. At that point Jane will have two marriages recognized by her state of residence.  This could possibly make her second marriage void.  It also might create a violation of the bigamy laws in Maine, because Jane will be married to two people and still living with her second spouse.

How can Jane avoid these problems?

Since Jane and Janet last lived together in Massachusetts, they can file for divorce in Massachusetts and dissolve the first marriage.  Once complete this will allow Jane to remarry without having to worry about the consequences.

However, if we change one fact in this hypothetical another problem arises.  If Jane and Janet didn't move to Massachusetts but just traveled there to get married while remaining residents of Texas, then they are are married in any state that recognizes same-sex marriage. However, they cannot get divorced in Massachusetts because neither is a resident and they never lived together in Massachusetts.  This means that Jane can't give divorced without moving to a state that recognizes same-sex marriages long enough to meet the residency requirements.

In this scenario, Jane can't get divorced and she shouldn't get re-married without getting divorced first.  Was it the intention of DOMA's drafters to prevent marriages between opposite-sex couples in their states?  Probably not, however, often poorly written legislation has unintended consequences.

Tuesday, February 5, 2013

Joint Petition for Modification: A Proposal for an Expanded & Simplified Procedure

UPDATE:  The changes proposed in this post were adopted on June 25, 2013 and became effective August 1, 2013.

Massachusetts Supplemental Probate and Family Court Rule 412 currently allows for the filing of a Joint Petition for Modification of Child Support when two parents agree that the child support figure should be amended.  Often when there has been a material change in circumstances, two parents can agree that the child support should change to reflect the new circumstances.  If the new agreement can be reduced to a writing, then it can be submitted to the court with a Joint Petition under Rule 412, and the court may approve it without requiring a hearing (although the court may schedule a hearing if they have questions about the agreement).

The obvious benefit to this joint petition process is avoiding the cost and stress of unnecessary trips to court when an agreement is reached between the parties.  When parties can't agree on whether child support should change or not, then a Complaint for Modification may still be necessary.  However with more and more parties trying to save money and stress by turning to mediation and collaborative law, even post-judgment disagreements are often resolved outside of court.

The problem with Rule 412 is that it is limited to child support changes.  If parties agree to changes which involve custody, alimony or other modifiable issues, the court doesn't currently allow a Joint Petition to be filed.  This means that even in cases with a full Agreement for Modification, a Complaint still needs to be filed, served and then presented at a hearing.  This results in unnecessary cost and stress and discourages parties from reaching agreements, which is why the court is considering making changes:

Proposed Amendments to Rule 412 of the Supplemental Rules of the Probate and Family Court

The proposed amendments expand the Joint Petition option to cover any judgment or order in the family court.  This would allow for the same stream-lined process if a couple agrees to modify alimony, medical insurance, parenting plans, or any other such order or judgment.  The court still reserves the right to require a hearing, and in many cases this may be necessary to clarify for Judges why the changes are being made, especially in cases where agreements may be unclear.

However, with well written agreements, this new process will open up many cases to be handled without a court appearance, and encourage parties to use mediation and collaborative law options more often for post-judgment negotiations.  Overall, this could mean a reduction in the number of court cases and reduced stress and cost for many families.

The new provisions would still exclude 209A restraining order cases from the Joint Modification provisions.  This means that a hearing would still be required for changes to orders or judgments in restraining order cases, even under the new Rule.

According to the Press Release: comments on the proposed amendments should be directed to the Probate and Family Court Bench/Bar Committee on Rules, c/o Evelyn Patsos, Esq., and sent via facsimile to (617) 788-6605 or by email to evelyn.patsos@jud.state.ma.us on or before Friday, February 15, 2013.

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