Family Law Bits

Divorce: Who Gets the Pets?

As we have all likely witnessed at the park, vet’s office, or pet food store, some people treat their pets just like furry or feathered offspring – and some may even treat their pets better than they treat their children. Today, pets can have substantial value in the divorce process and are given significant consideration in divorce proceedings. For the purposes of divorce, pets are defined as non-working domesticated animals such as dogs, cats, birds, etc. Until recently, pets have generally been considered personal property in divorce actions and have been assigned to either party as a part of the division of personal property. Recently there has been a move in the courts to consider pets as more than just personal property. In 2011 Massachusetts enacted statutes allowing for enforcement of trusts created to care and provide for animals. Also, both federal and state laws have created special protections to shield animals from abuse. In the world of family law and divorce, in 2013, a New York court granted a couple’s motion to argue over pet custody for the first time in the country’s history. Some courts outside of Massachusetts have taken a “best-interest” approach to assigning pets to one party or the other (i.e. the courts have considered which of the divorcing spouses is best able to provide care, attention, and basic needs to the pet). So who gets the dog, cat or fish? The answer to the question will depend on many factors and with “pet law” evolving throughout the country, we will see a trend toward assignment of the animal based on the companion relationship of the spouses to the pets, rather than simply treating animals as merely another piece of personal property. Currently, however, pets are still viewed by a majority of the courts, including Massachusetts, to be personal property of the marital estate. Ultimately, pets are part of the division of assets and will be assigned a value in divorce proceedings. As difficult as it may be for parties who love their dog or cat to understand, a custody arrangement with visitation/parenting time is not likely to be ordered by a court in the Commonwealth of Massachusetts under the current law. If you are getting divorced and want to understand how to keep your pet, a family law attorney can provide guidance and advice. If you are considering providing for your pet’s care in the event of your death or disability, contact an estate planning attorney to assist you. Some attorneys practice within both areas of law and you may be able to find one in your community.

Julie A. Dialessi Lafley is a shareholder with Bacon / Wilson P.C. and practices in the areas of family law and estate planning. She can be reached at [email protected] or 413-781-0560.

Image credit: Pixabay 

New child support guidelines effective in Massachusetts August 1st

Effective August 1, 2013 the trial court in Massachusetts will issue new, revised child support guidelines. These were created following a comprehensive review by the child support guidelines task force, which conducted the review.

The child support guidelines are used by trial court judges in setting temporary, permanent, or final orders for current child support, in deciding whether to approve agreements for child support, and in deciding cases that are before the court to modify existing orders.

The revised child support guidelines are an attempt to account for the economic realities facing families in Massachusetts…in the entire state, and an attempt to ensure the well-being of the children of the Commonwealth.

The 2012 child support guidelines task force recommended a number of clarifications and changes. Some are minor, while others represent new or modified provisions. The most significant include:

• Income from means tested benefits such as SSI, TAFDC, and SNAP are excluded for both parties from the calculation of their support obligations.

• Availability of employment at the attributed income level must be considered in attribution of income cases.

• The text makes clear that all, some, or none of income from secondary jobs or overtime may be considered by the court, regardless of whether this is new income or was historically earned prior to dissolution of the relationship.

• Reference is made to the 2011 Alimony Reform Act. The text does not, however, provide a specific formula or approach for calculating alimony and child support in cases where both may be appropriate.

• Clarification is given as to how child support should be allocated between the parents whose combined income exceeds $250,000.

• A new formula is provided for calculating support where parenting time and expenditures are less than equal, (50/50,) but more than the assumed standard split of two thirds/one third.
  
  
• Guidance and clarification is given in the area of child support over the age of eighteen where appropriate. While the guidelines apply, the court may consider a child’s living arrangements and post-secondary education. Contribution to post-secondary education may be ordered after consideration of several factors set forth in the guidelines, and such contributions must be considered in setting the weekly support order, if any.

• The standard for modification is clarified to reflect the recent Supreme Judicial Court decision in Morales v. Morales, 464 Mass. 507 (2013).

• Circumstances justifying a deviation are expanded to include extraordinary health insurance expenses, child care costs that are disproportionate to income or when a parent is providing less than one-third parenting time.

For both payors and or recipients of child support these changes could be significant. Be sure to review your current orders with a family law attorney to ensure you are not affected.

Julie A. Dialessi-Lafley

Image credit: Microsoft

 

Interpreting DOMA - what it means for same sex couples

Last week, the Supreme Court struck down a key provision of the Defense of Marriage Act, known as DOMA, ruling the 17-year-old law was unconstitutional. In a very close, 5-4 decision, the majority of justices found that same-sex couples legally married in states allowing the unions should receive federal benefits.

There are 130,000 legally married, same-sex couples who are now positively affected. Having previously been denied federal benefits, these married couples will now be afforded federal benefits.

Additionally, there are veteran’s benefits, tax laws, family medical leave provisions, health benefits, retirement benefits, and estate planning benefits.

The June 26, 2013 ruling is just the beginning. There is considerable confusion and a lot of misinformation about what the Supreme Court’s decision will do for the gay community.

The implementation of the decision and changes will take time, and it is still unclear how far the effects will go. Many same sex couples may still be ineligible to receive federal spousal benefits for now, as a majority of individual states still do not allow same-sex marriage. Only the 12 states and Washington D.C., which allow same-sex marriages, are expected to gain federal benefits. The seven states that grant domestic partnerships and civil unions are up for debate.

We will be watching closely to see how this ruling will take effect. At the moment, even the brightest legal minds in the country are not clear on where this will go, but it is still a good time to review the plans already in place and make sure clients are prepared for whatever comes next.

 

Julie A. Dialessi-Lafley, Esq.

Image credit: WikiMedia

DOMA struck down by the Supreme Court – monumental effect on gay marriages

In a 5-4 ruling dated June 26, 2013, the United States Supreme Court justices strike down the Defense of Marriage Act, saying it is unconstitutional.

The Supreme Court case U.S. v. Windsor, ruling said that New York’s decision to authorize gay marriage was a proper exercise of its authority, and reflected, “the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.”

What this means is that gay couples who are married will be recognized on the federal level, regardless of their state of residence.  So for those couples who have married in a state where gay marriage is lawful, and return to a home state that does not allow for gay marriage, they will now have the same federal tax, retirement contribution, health insurance and estate plan benefits of those heterosexual couples who have married.

As an estate and family law attorney, this decision resonates with me for my clients who will now enjoy the same rights and privileges concerning tax and estate planning as every other straight married couple.

The ruling of the Supreme Court has many gay couples rejoicing, and the public at large, who seems now narrowly in favor of gay marriage at 53% in a poll conducted by NBC News and The Wall Street Journal, applauding and cheering.

In the time to come, the far reaching effects of this decision will be developed, but for today, married gay couples can rest assured that they will be afforded the same federal benefits as straight couples, and they can consider revisions to the current financial and estate plans, consistent with the protections now guaranteed to them by this decision.

Julie A. Dialessi-Lafley, Esq.

Help Employment Law Bits become a Top 25 blog!

Great news: our sister blog, Employment Law Bits, has been nominated as one of LexisNexis' top 25 employment law blogs 2011. Please help us win by voting here: 

 

Please hurry. Voting closes September 12, 2011.

Thanks so much!

Proposed changes to Massachusetts alimony would eliminate lifetime awards

The week of August 18th, the MA House of Representatives vote to approve a bill that will change the Commonwealth’s alimony rules. The new law establishes guidelines for setting alimony payments and does away with the ability of judges to approve “lifetime alimony.”

Under the new law, the length of alimony is dependent on the length of the marriage, and in most cases, ends at the age of retirement. In the context of the proposed statute, retirement is defined as when one would qualify for full benefits under social security.  This distinction needs to be made so as not to confuse someone into thinking that early retirement would qualify for termination of alimony. In the past, judges had discretion to consider a variety of factors, including assets and employment status. 

The proposed law also proposed new types of alimony including “transitional alimony” which would occur when a spouse needs temporary assistance or job training. Also proposed in the law is “reimbursement alimony” which would be for repayment of money spent on helping a spouse through school or training while married.

The new law would not change alimony rulings already in place but it would allow divorced parties to ask for alimony modifications. If approved by the Senate, this new law is sure to result in more consistent alimony rulings throughout the state, while taking discretion away from judges and creating new forms of alimony. 

 

Photo credit: Microsoft 

Employees should beware verbal commitments to extend maternity benefits under MMLA

The Massachusetts Maternity Leave Act (MMLA) guarantees eligible employees 8 weeks of unpaid leave for giving birth, adopting a child under the age of 18, or adopting a child under the age of 23, if the child is mentally or physically disabled. The bounds of this legislation and maternity rights in general were recently challenged in the case of Global NAPs v. Awiszus.

In Awiszus, an employee-plaintiff became pregnant and informed her supervisor of her intention to utilize her guaranteed 8 weeks of unpaid maternity leave. Her employer promised her an additional 3 weeks of unpaid leave if she required a Cesarean section. The employee required a Cesarean section and tried to return to work after taking 11 weeks of unpaid leave. The employer reneged on its promise and informed the employee that she no longer had a job. The employee sued and was awarded compensatory and punitive damages. 

The decision was appealed to the Supreme Judicial Court (SJC) where they overturned the lower court’s decision. Specifically, the SJC held that the employee "was not entitled to the protections afforded by the MMLA, given that she was absent from employment for more than eight weeks." The SJC noted, however, that the employer's broken promise may give rise to a claim "for breach of contract." 

In light of the Awiszus decision, employees need to be sure that they understand their rights under the MMLA. Employees should not assume that verbal commitments from employers that claim to extend their rights under MMLA actually give the employee any addition rights beyond those that would exist in an ordinary contract. The SJC has clearly stated that employees who rely solely on the word of an employer that promises more maternity leave than the MMLA guarantees can only seek a breach of contract remedy.

 

Photo credit: Microsoft

Divorce and bankruptcy: working together for a fresh start

  

 

This video will help you understand how it's sometimes best to file for bankruptcy jointly before divorcing. Michael J. Grilli, Esq. 413.781.0560, [email protected]

© 2011, Bacon Wilson, P.C. This video has been prepared by Bacon Wilson, P.C. for informational purposes only and is not intended and should not be construed as legal advice. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Viewers should not act upon this information without seeking professional counsel. Do not send us information until you speak with one of our lawyers and get authorization to send that information to us.

Confidentiality issues with a child therapist

 

 

Balancing a parent's need to know what a child says to his therapist against a child's need to trust the confidentiality of what he tells that therapist is a sticky issue. This video will help you understand the implications of your decision. Michael J. Grilli, [email protected], 413.781.0560

© 2011, Bacon Wilson, P.C. This video has been prepared by Bacon Wilson, P.C. for informational purposes only and is not intended and should not be construed as legal advice. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Viewers should not act upon this information without seeking professional counsel. Do not send us information until you speak with one of our lawyers and get authorization to send that information to us.

ALERT about Springfield Office Operations on Friday, June 3

We have repaired the damage caused by the tornado and restored full parking in our lot. We are back to business as usual on Friday June 3. There is no need to check with your attorney before coming to your appointment.

Thank you for your understanding during our repairs on Thursday. Please use caution, as some streets in Springfield may remain blocked.