A recent Superior Court case held that a divorce lawyer who was sued for malpractice by a client could depose the successor counsel who represented that client in a modification action. That the client waives attorney-client privilege when malpractice is asserted is black-letter law. Here, the court extended that waiver to the successor counsel hired to fix the problems that the original lawyer had allegedly failed to address. The case should, at the very least, remind mediators that our confidentiality statute isn’t bulletproof — in the event of a malpractice claim, the statute will not protect mediation communications from disclosure. See, e.g. Bobick v. United States Fid. & Guar. Co., 439 Mass. 625, 658 n.11 (2003). DiPietro v. Erickson, 2010 WL 1178410 (Mass.Super.) (March 16, 2010).
Automatic Restraining Order
During the pendency of a divorce action, the Barnstable Probate and Family Court found that the wife’s restatement of her revocable living trust so as to longer provide the husband with a life estate in the marital home was not a violation of the automatic restraining order, Rule 411. Central to the holding was that title to the home was not conveyed or transferred – and that the asset was not placed outside of the Court’s reach for purposes of equitable distribution. The restatement only affected Husband’s expectancy of a future interest which does not implicate Rule 411. To those who had wondered whether changing a will violated Rule 411, this case provides good ammunition that it does not. Darden v. Darden (Lawyers Weekly No. 15-001-09) (October 15, 2009) (published in Lawyers Weekly February 15, 2010). [Read more…]
Imputing Capital Gains and Broker Fees
Imputing Capital Gains and Broker Fees – A former husband appealed from a divorce judgment relative to a particular property division. Among his claims, he disagreed with the judge’s rejection of his request to have capital gains tax and real estate broker’s fees taken into account in valuing a particular property. The Appeals Court upheld the judgment, noting that “without evidence that the husband intended to sell the property or would be compelled to sell the property as a result of the division of assets, it was not clearly erroneous for the judge to decline to consider adverse capital gains tax consequences or broker’s fees.” If Bernier v. Bernier, 449 Mass. 774 (2007) had not already done so, this is yet another “nail in the coffin” for imputing broker’s fees and capital gains where no sale of the at-issue property is imminent. Gentilella v. Fillion, 73 Mass.App.Ct. 1121 (February 13, 2009) (Unpublished) [Read more…]
Supreme Court Upholds “Plan Document” Rule
Supreme Court Upholds “Plan Document” Rule – Resolving a split between the federal circuit courts, the United States Supreme Court upheld the so-called “plan document” rule in finding that plan administrators must pay benefits under an ERISA plan according to the beneficiary designation on file with them. In this case, the ex-spouse had purportedly waived her rights to her ex-husband’s 401-k in a divorce agreement that was subsequently incorporated in a judgment. The ex-husband died, having neglected to change the beneficiary designation; consequently, the ex-wife was still designated as the beneficiary on the plan document at the time of his death. The plan administrators, relying on that designation, paid the benefits to the ex-wife and the executrix of the ex-husband’s estate sued, alleging that the ex-wife had no rights to the benefits as a result of the divorce judgment. The executrix, however, may not be out of remedies as the decision does not make clear whether the estate would have a cause of action against the ex-wife for breach of the divorce agreement. The case law on this issue, too, is divided – with some courts allowing a breach of contract action in these circumstances and others holding that ERISA preempts (i.e. does not permit) such actions. Kennedy v. Plan Adm’r for DuPont Sav. and Inv. Plan, 129 S.Ct. 865 (January 26, 2009)
Attorney Jonathan Fields of Fields and Dennis, Wellesley, Massachusetts is a family law and divorce lawyer serving the Greater Boston region.
Challenge To New Child Support Guidelines
Challenge to New Child Support Guidelines – The organization “Fathers and Families” brought suit in federal court to prevent the implementation of the new child support guidelines. According to the complaint, the guidelines were formulated without obtaining data on the cost of raising a child in Massachusetts in contravention of federal law. The suit also contends that because the law was implemented without a vote by the state legislature, but rather by a single “unelected judge,” it violates the state and federal constitutions. Notably, according to the suit, Massachusetts is one of only three states in which child support guidelines are implemented without legislative action. As for the federal court action, the judge ordered the Attorney General to file a motion to dismiss by January 28, 2009 – not a good sign for the plaintiff; but the issue would still be viable even if it the federal suit were dismissed as the suit could be refiled in state court. Fathers and Families v. Robert A. Mulligan (filed December 23, 2008) [Read more…]
Unequal Division Upheld
Unequal Division Upheld – The Appeals Court upheld a Probate Court judgment that ordered a 60-40 division in favor of the wife, finding that while the parties had contributed equally to the acquisition of marital assets but that the wife made superior contributions in terms of managing the assets and in her post-separation duties as the primary custodial parent. Further justifying the result was the husband’s filing of four ancillary lawsuits that were consolidated with the divorce. O’Connor v. O’Connor, 73 Mass.App.Ct. 1109 (Unpublished) (December 9, 2008)
Attorney Jonathan Fields of Fields and Dennis, Wellesley, Massachusetts is a family law and divorce lawyer serving the Greater Boston region.
Premarital Asset Not Divided
Premarital Asset Not Divided– In a case involving a 16 year marriage, the Appeals Court upheld a Probate Court judgment that awarded an equal division of assets but permitted the husband to retain a premarital gift worth $600,000 on the date of their marriage (but not the appreciation of that asset which the court divided 60-40 in favor of the husband.) While noting that there are no “hard and fast rules” regarding premarital assets, the Court found significant the fact that the monies were kept in the husband’s name. The Appeals Court states, however, that it would have been preferable if the court had considered the role of each party in “managing the assets, and whether the assets in question had been kept separate or commingled with the couple’s jointly owned property.” Burr v. Burr, 73 Mass.App.Ct. 1105 (Unpublished) (November 18, 2008).
Attorney Jonathan Fields of Fields and Dennis, Wellesley, Massachusetts is a family law and divorce lawyer serving the Greater Boston region.
Imputed Income
Imputed Income – The Appeals Court affirmed a divorce judgment in which an annual income of $120,000 was imputed, or attributed, to the wife, finding that she could earn such income “with reasonable effort.” The wife in this case had a history of earning a salary in that range and her underemployment was a result of her “unilateral decision.” Alexander v. Alexander, 72 Mass.App.Ct. 1118 (Unpublished) (September 30, 2008)
Attorney Jonathan Fields of Fields and Dennis, Wellesley, Massachusetts is a family law and divorce lawyer serving the Greater Boston region.
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