Monday, June 27, 2016

Demarco v. Demarco - Surviving the Times

The Alimony Reform Act has led many to seek changes to their alimony orders and agreements.  The change from "lifetime alimony" was a driving force behind the Act, after all.  However, that doesn't mean that everyone is entitled to a change under the Act.

In Demarco v. Demarco, the Appeals Court looks at a case where two parties reached an Agreement based on an assumption that the husband was entitled to a change under the Act.  That assumption was incorrect according to the Supreme Judicial Court's ruling in Chin v. Merriot (and its two companion cases, Rodman & Doktor).   The recipient spouse in Demarco believed that this mistake required her case to be reopened, and the trial judge agreed.  Below is a recap of the timeline in this case:

May, 2010 - The Demarco's get divorced, with an agreement that includes an alimony payment (merged order).

Mar, 2012 - The Alimony Reform Act takes effect, and it includes a provision that alimony presumptively ends at full social security retirement age.

Dec. 2012 - Husband (payor) in Demarco reaches full social security retirement age and stops paying alimony.

Feb, 2013 - Wife files a Complaint for Contempt and husband files a Complaint for Modification.

Feb, 2014 - At trial on consolidated complaints, the parties reach a full agreement which survived.

Jan, 2015 - SJC rules in Chin v. Merriot (and its two companion cases, Rodman & Doktor).

Aug, 2015 - Wife filed a Motion for relief from the judgment under Mass.R.Dom.Rel.P. 60(b) and a Complaint in Equity asking to reinstate alimony.

Nov, 2015 - Judge allows Wife's Motion which Husband then appealed.

June, 2016 - On expedited appeal, the appeals court overturns the lower court.  The survived agreement stays.

The appeals court notes that relief under a 60(b) motion for "extraordinary circumstance" has a very narrow scope, and they disagreed with the trial court that these circumstances fell within that scope.  The appeals court quoting Freitas v. Freitas states that because of the importance of finality, "the rule should not be used as an instrument for relief from deliberate choices which did not work out".  While it may appear to some that the agreement obtained by the Husband, in light of the Chin case, is unfair to the Wife, there are no guarantees that the law will remain the way it is now anyway.  There is a bill pending in the Massachusetts Senate that would override the ruling in Chin.  For more on the status of that bill read Alimony Re-Reform Passes Massachusetts House in Unanimous (156-0) Vote.

Since the lower judge ruled on the 60(b) issue the appeals court wasn't required to speak to the issue of the Agreement having a survival clause, but in order to prevent others from trying the same thing, the appeals court did expound on this issue as well:
"While Probate and Family Court judges enjoy considerable discretion, that discretion does not extend to vitiating a contract that was negotiated at arm's length and entered into freely and voluntarily. In the absence of fraud, coercion, or  countervailing equities, a signatory to an agreement is bound by its terms. Knox v. Remick, 371 Mass. 433, 436-437 (1976)."
This reiterates the importance of survival clauses in Agreements.  They are powerful and potentially beneficial for both sides because they create finality.  However, that finality is almost absolute and parties should take their time before reaching these types of agreements.  One of the benefits of dispute resolution processes outside the court (like mediation and collaborative law) is that they provide you with the necessary time and space to make informed and thoughtful decisions, instead of rushing those decisions on the courthouse steps.  

Friday, June 24, 2016

Changing your Parenting when a Case is Pending May Be Too Little Too Late for the Appeals Court

The Massachusetts Appeals Court recently provided an overview of the two-part test for deciding if a custodial parent can move out of state with their child in Rosenwasser v. Rosenwasser.   The father in Rosenwasser requested the court's permission to move to Florida with the parties' minor child.  The trial court denied his request after applying the two-part test from the Yannas case.  However, the appeals court disagreed with how the trial court applied the test and focused specifically on a change the mother made to her parenting only recently.

The appeals court agreed with the trial court that the father met the first prong of the Yannas test because there was a "real advantage" to him moving to Florida, namely decreased expenses and family support.  In addition, the request to move did not appear to be motivated by a desire to deprive the mother of time with the child.

The second part of the Yannas test requires the court to determine if the move is in the "best interest of the child" taking into account numerous factors:

  1. "whether the quality of the [child's] li[fe] will be improved, including any improvement that 'may flow from an improvement in the quality of the custodial parent's life';"
  2. "any possible 'adverse effect of the elimination or curtailment of the [child's] association with the noncustodial parent';"
  3. "the extent to which moving or not moving will affect the [child's] emotional, physical, or developmental needs;" 
  4. "the interests of both parents;" and 
  5. "the possibility of an alternative visitation schedule for the noncustodial parent."
The trial court found that the move would not be in the child's best interest based primarily on the effect the move would have on the child's development and the relationship with the mother.  The appeals court disagreed with how the trial court weighed the factors.  Specifically the appeals court focused on the weight the trial court gave the mother's relationship with the child, and indicated that it wasn't appropriately weighed against the benefits of the move to the father.  

On the one hand, this could be seen as the appeals court double counting the "real advantage" to the father.  This approach makes it very difficult for a non-custodial parent to succeed on the second part of the Yannas test if the "real advantage" is already established and needs to be weighed heavily in the second part as well.  This has been addressed in previous cases that have held the "best interests of a child are so interwoven with the well-being of the custodial parent."

On the other hand, the appeals court was not just focused on the father's interests, but also specifically  focused on the fact that the mother had only recently stepped up her involvement with the child. 
"While the mother's 'near perfect' adherence to the parenting schedule during the five months in which the trial was pending is commendable, it does not erase the substantial time that she already missed."  
It is possible to argue that the mother only stepped up her parenting time adherence when faced with a reduction in her support.  It is also possible that the mother, when faced with the real possibility of having her child move far away, realized how important her time with the child was.  Either way, the appeals court's focus on this factor is an important reminder that the court is often not swayed by what people write in an agreement or say they're going to do.  It is much more important what people actually do.  

Also notable in the case is the appeals court's choice to send the support calculation back to the lower court.  The lower court used the approach provided by the parties' previous agreement by using the husband's base to calculate alimony and then a percentage of his variable income.  However, the trial court reduced his support using a lower base, but kept the percentage starting at a higher figure, thereby creating a gap in the support calculation.  If this was intentional it wasn't made clear in the trial court's decision and therefore not justified according to the appeals court.  Clearly the trial court had discretion to decrease the father's support and to use the variable approach that the parties preferred in their agreement.  However, modifying this type of agreement requires attention to detail, something to consider when creating self-modifying support agreements that could be relied on later by the court.

Monday, June 13, 2016

Should you Designate a Guardian in your Divorce Agreement?

Post by Beth Aarons*

Many divorcing parents put their estate planning issues on the back burner as part of their post-divorce “to do” list. Divorcing parents with minor children or children with special needs, however, may wish to include a guardian nomination provision within their divorce agreement.  Guardian nomination provisions are not required by the Court as part of the divorce agreement, and are therefore seldom seen, but having the conversation prior to the divorce and memorializing the couple’s agreed-upon wishes is an easy way to protect the children from a potential nightmare down the road.

Most divorcing couples are primarily focused on the immediate issue of transforming a single family unit into separate lives: division of assets and liabilities, transitioning to two households, and creating the parenting plan.  These issues contemplate the parents living apart, with the issue of the death of one parent arising primarily in the context of a triggering event for the termination of financial support.  The care of the children in the event of the death of both parents is usually not part of the typical divorce discussion.  In out-of-Court divorce processes such as Mediation or Collaborative Law Practice  these type of additional discussions are encouraged.

So what happens to the children if both divorced parents die?  As with an intact family, the parents’ relatives would probably go searching for a Last Will and Testament to see what the guardian designations are.  With a married couple, whose estate planning was likely done together, the guardian nominations would be the same in both Wills.

For divorced parents, who each have their estate plans prepared separately post-divorce, the list of guardians in each Will may not overlap.  Divorced parents frequently nominate guardians only from his or her own side of the family.  There may be little or no discussion with the ex-spouse about who should raise the children.  Differing guardian nominations can lead to a contested guardianship, including litigation, lawyer fees, and the time and expense associated with a contested Court process.  Worst of all, after the child has lost both parents, the child's relatives are at war with each other.  Their relationships may be irretrievably destroyed, and if no temporary guardianship is allowed by the Court, the child may remain in DCF custody and placed in a foster home pending the outcome of the guardianship case.

While this worst case scenario may not occur in every case, the potential for it is there if divorcing parents do not take the time to jointly consider who will raise their children if they are both deceased (or otherwise unavailable).  Adding a clause to the divorce agreement to nominate guardians would help avoid the possibility of a contested guardianship.

Whether the divorce agreement includes a list of specific names or merely states the parents will confer post-divorce to agree on the nominees, the type of guardian nomination provision is far less important than the fact that there is one at all, demonstrating that the parents have contemplated the options for who will raise their children in the event they are not available to do it themselves.

*Beth is of counsel to Skylark Law & Mediation, PC and runs her own a solo law practice in Newtonville.  Beth's practice includes family law & divorce representation, estate planning & probate, and GAL work.

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