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MA Family Law: Inconsistency Standard v. Material Change of Circumstances

 

What standard must a Probate and Family Court use when faced with a modification of a child support order when the case is within the Child Support Guidelines?  The trial judge in this case dismissed the modification complaint because, although the ex-husband’s income had increased, she found there was not a “substantial and material change in circumstances.”  Notably, the judge’s decision did not mention the “inconsistency standard” in G.L. c.208, s.28 which states that a modification is appropriate “if there is an inconsistency between the amount of the existing order and the amount that would result from applying the Guidelines.”  Nevertheless, the Appeals Court affirmed her judgment.  The SJC, however, reversed; it held that the “inconsistency standard” rather than the “material change in circumstances” applies where modifications of child support within the Guidelines are concerned.  Morales v. Morales, 464 Mass. 507 (March 12, 2013)

MA Family Law: Modifying Age of Emancipation of an Out-of-State Child Support Order

 

As mediators and lawyers, we are often confronted with out-of-state divorce judgments.  Since Massachusetts has the most generous emancipation statute in the country, those out-of-state judgments often provide that support ends long before a child’s 23rd birthday, depending on the state.  Steve and Mary Ellen Freddo had four children and were divorced in Florida.  Following the divorce, they both moved to Massachusetts. Mr. Freddo brought a complaint for modification in Massachusetts when all of the children were over eighteen.  Mr. Freddo’s argument was (1) that under Florida law, children are emancipated at age eighteen, with exceptions not relevant here, and the age of emancipation is a non-modifiable matter and (2) under the Uniform Interstate Family Support Act (UIFSA), if an obligation is non-modifiable in the “issuing state” (Florida, in this case), then the “responding state” (Massachusetts) cannot modify it.  The Probate and Family Court found Mr. Freddo’s complaint frivolous and dismissed it, relying on the “post-eighteen” provisions of G.L. c.208 s.28.  In this significant case of first impression, the Appeals Court reversed, holding that Massachusetts could not modify the age of emancipation where it could not have been modified in Florida.  Acknowledging the inconsistency between G.L. c.208 s.28 and UIFSA, the Appeals Court found that the latter takes priority; both the “full faith and credit purpose” of UIFSA and the fact that it was enacted after G.L. c.208 compel this conclusion.  Freddo v. Freddo, 83 Mass.App.Ct 353 (February 26, 2013)

MA Family Law: Imputing Income: Reasonable Efforts to Find Employment

 

The Probate and Family Court imputed income to an ex-wife based on her present ability to obtain employment.  On appeal, the Appeals Court reminds us that the test for imputing income is a two-part inquiry: (1) whether the person has a present ability to obtain a particular job and (2) whether the person exercised “reasonable efforts” in the job search.  Here, the trial court made no findings regarding the second requirement.  Accordingly, the case was remanded to the trial court for further fact finding on the “reasonable efforts” issue.  Ulin v. Polansky, 83 Mass.App.Ct. 303 (February 19, 2013)

MA Family Law: Court Must Consider Tax Consequences if Presented

 

Court Must Consider Tax Consequences if Presented.  Under the Internal Revenue Code, alimony cannot be contingent on a child-related event lest it be re-characterized as non-deductible support.  Here, the Probate and Family Court entered a judgment requiring the Father to pay alimony until the youngest child graduated from high school at which point it would be reduced.  The Father sought post-judgment relief from the Probate and Family Court to no avail and appealed the denial. The Appeals Court affirmed the trial court judgment, and the SJC reversed, holding that because the law requires a court to consider “income” when determining alimony and property division, that court must consider income tax consequences as well when such evidence is presented.  L.J.S. v. J.E.S., 464 Mass. 346 (February 8, 2013)

From the Family Mediation Quarterly

Attorney Jon Fields Elected to the Board of Directors of the MA-AFCC

 

On Friday, April 5th, Attorney Jon Fields was elected to the Board of Directors of the Massachusetts Chapter of the Association of Family and Conciliation Courts (MA-AFCC).  Mr. Fields has always been deeply involved in the family law arena, and he has over 22 years of experience representing clients.  Family law can be a complex area, but one that Mr. Fields is passionate about handling with compassion and innovative solutions.

The Association of Family and Conciliation Courts is an interdisciplinary and international association dedicated to family conflict resolution.  Members of the AFCC include judges, lawyer, mediators, psychologists, academics, psychiatrists and social workers, among others.

The Massachusetts Chapter was created in 1993.  Its purpose is to provide an opportunity to open up a dialogue and exchange ideas on ways to improve the procedures in place to help families in conflict.   It seeks to improve court procedures by introducing more collaborative system of dispute resolution. One of the main goals of the AFCC and the Massachusetts chapter is to protect the interests of children in all facets of family law.

Since 2008, Mr. Fields has regularly written a well-regarded column for the Family Law Quarterly about Massachusetts family law and its impact on divorce mediation.  He has spoken at various conferences and panels on the topic and his expertise has also been consulted for a major television network show dealing with matters of family law.  His background in the area is wide ranging and we are very pleased to announce his new place on the Board of Directors of the Massachusetts Chapter of the Association of Family and Conciliation Courts (MA-AFCC).

"Talking about the Law" with Bob Flynn on WRCN

Estate planning attorney Sheryl J. Dennis and veterans affairs attorney Hugh F. Ferguson of the esteemed family law firm Fields and Dennis, LLP, will be “talking about the law” with WRCN radio host Bob Flynn this Sunday, Veterans Day, November 11, 2012.

The topic will be “Navigating the VA System: Claims for Compensation, Pension and Medical”. The show starts at 10:00 am and runs to 11:00 am.

About “Talking about the Law”

Host and attorney Bob Flynn talks about the law, the third branch of government (the court system), and how it affects you and your families. Bob Flynn is the founding partner of Flynn Law Firm PC with offices located in Wellesley, Boston, Worcester and Springfield, Massachusetts. Flynn has over 30 years experience representing the injured, claimants, insurance companies, businesses and commercial clients in accidents, business disputes, abuse or neglect, and medical, dental and legal malpractice.

Jonathan E. Fields elected president of the MCFM

On May 1, Jonathan Fields was elected President of the Massachusetts Council on Family Mediation for a two-year term.  He is honored to have been chosen by his peers in an organization in which he has served as an Executive Board member since 2005.  The MCFM is a non-profit organization established over twenty-five years go by family mediators interested in sharing knowledge and setting guidelines for family mediation.

 

The Vineyard, Valuation, and Present Divisions

After a trial, a Probate and Family Law Court entered a divorce judgment (1) valuing the husband’s 25% interest in a Martha’s Vineyard property at 25% of the market value of the property and (2) awarding a present interest in that property to the wife.  The Appeals Court reversed.

On the issue of valuation, the appellate court noted that, while there was evidence of the market value of the entire Martha’s Vineyard property, there was no evidence as to the husband’s 25% interest – simply valuing it at 25% of market value was without basis.

Further, since the Court acknowledged that the husband’s interest was unlikely to be sold and unlikely to generate income for him, ordering the husband to make a present payment to his wife for $360,000 is “plainly wrong and excessive.”  While the law strongly favors present payments to “if, as, and when” payments, the law also recognizes that where a present division would cause an undue hardship to a party, it is inappropriate.  Elliott v. Elliott, 2011 Mass.App.Unpub. LEXIS 992 (September 6, 2011)

Pierce Redux

While we’’re all waiting for the Legislature to act on the new alimony bill, it pays to remember that Pierce is still good law. The controversial 2009 decision held that a modification or termination of alimony “should not be solely premised on a supporting spouse’s retirement.” A recent appellate decision clarifies Pierce further. A sixty-five year old ex- husband filed a complaint to terminate his alimony because he had retired. The Probate judge allowed the ex-husband’s complaint and the ex-wife appealed, asserting in her appeal that the judge’s order was inconsistent with Pierce. The Appeals Court affirmed, noting that the judge properly based her decision on an analysis of the recipient’s need and the payor’s ability to pay and not solely on the fact of the ex-husband’s retirement. Importantly, the court also noted that the ex-husband’s retirement was in “good faith” and at the “customary retirement age of 65.”

Ross v. Ross, 2011 Mass. Unpub. LEXIS 434 (April 6, 2011)

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    The Boston metro family law, divorce and estate planning attorneys at the law firm of Fields and Dennis LLP are based in the Newton Wellesley area and serve the city of Newton: Auburndale, Chestnut Hill, Newton Centre, Newton Corner, Newton Upper Falls, Newton Lower Falls, Nonantum, Oak Hill, Waban and West Newton and town of Wellesley: Babson Park, Wellesley Hills, Wellesley Square Fields and Dennis also serves many clients in the Greater Boston and Massachusetts region including Ashland, Dover, Holliston, Medfield, Needham, Sherborn, Westwood, and all of Massachusetts. Attorney Jonathan Fields is a recognized authority on bitcoin and divorce

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