Cost-effective Law and Mediation Services Sensitive to the Needs of Couples and Families

NEWS AND ARTICLES

... where couples and families matter

MASSACHUSETTS ALIMONY REFORM BILL IS SIGNED INTO LAW

by Marion Lee Wasserman

The Alimony Reform Act of 2011 was signed into law by Governor Deval Patrick on September 26, 2011. The Alimony Reform Act will enter into effect on March 1, 2012. This legislation is designed to add greater fairness and predictability to alimony awards in Massachusetts. Under the Alimony Reform Act, complaints for modification of existing alimony awards may be based on the new law according to a time line specified in the law, with the earliest date for any such modifications being March 1, 2013. For substantive discussion of this legislation, see my previous Blog posts titled “On the Brink of Reform,” installments 1 and 2, and look for upcoming posts as well. Click here, for the text of the new statute: Alimony Reform Act of 2011.

POSTNUPTIAL AGREEMENTS IN MASSACHUSETTS: THE IMPORTANCE OF LEGAL COUNSEL

by Marion Lee Wasserman

For married couples who want to contractually settle certain financial matters between them as a means of strengthening and stabilizing their marriage, the case of Ansin v. Craven-Ansin, decided by the Massachusetts Supreme Judicial Court in 2010, was great news. In the Ansin case, married couples in Massachusetts were deemed, for the first time, to have a clear right to enter into so-called postnuptial agreements (also called marital agreements) and to rely on those agreements in the event of a later divorce, provided the agreement meets certain criteria. The caveat here is that, in the event of divorce, the party seeking to enforce the agreement bears the burden of proving to the court that the criteria have been met. This burden of proof will be significantly harder to meet if the party has not had adequate legal representation in the negotiation of the agreement.

According to Ansin, for a postnuptial agreement to be enforceable in connection with a divorce, five criteria, at a minimum, must be met: (i) opportunity to obtain separate legal counsel of each party’s own choosing; (ii) absence of fraud or coercion; (iii) full asset disclosure before execution of the agreement; (iv) knowing and explicit waiver of marital rights and of the right to a judicial equitable division of assets in the event of divorce; and (v) fairness and reasonableness at the time of execution and at the time of divorce.

The Court’s in-depth analysis of criteria (ii) through (v) takes into account the participation of independent, experienced legal counsel in the negotiation of the agreement. In other words, it is not merely the opportunity to obtain counsel that is important, as specified in the first requirement. The actual participation of counsel is scrutinized as well and is examined in applying each of the remaining four requirements. In Ansin, the Court finds that the postnuptial agreement is enforceable against the wife. The wife’s having had the benefit of counsel in the negotiation of the agreement is a significant factor in convincing the Court to reach this conclusion.

The safest approach to negotiating a postnuptial agreement — assuming the parties desire to have the agreement be enforced if the marriage should end in divorce — is for each party to have the benefit of independent counsel during the negotiations. This means that if the negotiations are carried out in mediation, the parties would be well-advised to have independent counsel review the mediated postnuptial agreement, whether or not the mediator is an attorney.

In Ansin, the Court provides an interesting footnote on the issue of independent legal counsel:
“We do not require as do some other States, that a marital agreement will be enforceable only if each spouse is represented by separate counsel. …Reliance on the advice of experienced, independent legal counsel, however, will go a long way toward ensuring the enforceability of an agreement. … Here it is undisputed that both parties to this agreement not only had the opportunity to, but did, obtain separate legal counsel.” (FN9)

The above article is provided for general informational purposes. This article is based on Massachusetts law and applies to Massachusetts only. Furthermore, it is not intended to apply to any specific facts or circumstances and should not be construed or applied as legal advice or legal opinion or as tax advice or as establishing an attorney-client relationship.

MASSACHUSETTS ALIMONY REFORM BILL PASSES SENATE AND HOUSE

by Marion Lee Wasserman

The proposed Alimony Reform Act of 2011 was unanimously passed by the Massachusetts Senate on July 28, 2011, having unanimously passed in the House of Representatives on July 20, 2011. It is anticipated that the Governor will sign this historic piece of legislation, which would become effective on March 1, 2012. Under the Alimony Reform Act, complaints for modification of existing alimony awards may be based on the new law according to a time line specified in the law, with the earliest date for any such modifications being March 1, 2013. For substantive discussion of this legislation, see my previous Blog posts titled “On the Brink of Reform,” installments 1 and 2, and look for upcoming posts as well. Click here, for the text of the bill: Alimony Reform Act of 2011.

DO YOU NEED A RELIGIOUS DIVORCE?

by Marion Lee Wasserman

Most of the divorcing couples who come to me for assistance have had a religious marriage ceremony. These couples sometimes have a question along the lines of one posed to me recently by an immigration attorney on behalf of his client: “My client was married in civil proceedings and in a religious Muslim ceremony in the US. He has a civil divorce decree. Does he need another type of divorce decree for the religious marriage?”

Here is the answer: If you have a valid civil divorce judgment, you are legally divorced. The issue on the religious side is a question that goes to religious custom rather than to civil legality. For example, some Jewish clients want to take steps involving a “get” — a formal religious document divorcing the couple under Jewish law. If they want to obtain a “get,” they take the necessary steps on their own, through their synagogue, though they may include language in their Separation Agreement agreeing to do so.

In the Muslim religion, as in any religion, there may be a proceeding or document that gives religious recognition to the divorce. For a Muslim couple wondering what steps to take for a religious divorce, the question should be addressed to an imam rather than a civil attorney. There is no necessity for a “religious divorce” from the legal perspective. But an observant Muslim may want to look into the issue and satisfy any religious requirements.

A separate question is whether a civil divorce judgment obtained in the United States will be recognized in a court in a Muslim country, or whether a divorce judgment obtained in a court in a Muslim country will be recognized in a court in the United States. Depending on the extent of the differences between standards applied by the respective jurisdictions, the courts of one nation might refuse to give recognition (“comity”) to the judgment of the foreign court.

The above article is provided for general informational purposes. It is not intended to apply to any specific facts or circumstances and should not be construed or applied as legal advice or legal opinion or as tax advice or as establishing an attorney-client relationship.

MASSACHUSETTS ALIMONY REFORM BILL CLOSER TO FINAL PASSAGE

by Marion Lee Wasserman

The proposed Alimony Reform Act of 2011 was unanimously passed by the Massachusetts House of Representatives on July 20, 2011. This historic legislation, intended to remake the alimony landscape in Massachusetts, has moved a giant step closer to becoming the law of the Commonwealth. A vote on the bill by the Massachusetts Senate is expected before August. For substantive discussion of this legislation, see my previous Blog posts titled “On the Brink of Reform,” installments 1 and 2, and look for upcoming posts as well. Click here, for the text of the bill: Alimony Reform Act of 2011.

ON THE BRINK OF REFORM: A CLOSE LOOK AT ALIMONY LEGISLATION PENDING IN MASSACHUSETTS

by Marion Lee Wasserman

INSTALLMENT II: THREE KINDS OF SPECIAL-PURPOSE ALIMONY

The Alimony Reform Act of 2011, currently pending in the Massachusetts legislature, establishes three types of special-purpose, limited-duration alimony — “Rehabilitative Alimony,” Reimbursement Alimony,” and “Transitional Alimony” — which are distinguished from “General Term Alimony.” General Term Alimony is alimony paid to an economically dependent spouse that does not fall within the three special categories.

In defining three special types of alimony, the proposed legislation is designed to formally recognize that a legitimate function of alimony in certain cases is to meet a specific, short-term need.

1. Rehabilitative Alimony: The purpose of Rehabilitative Alimony would be to provide support for a limited period, in anticipation of the recipient spouse becoming economically self-sufficient. In the language of the proposed statute, the recipient spouse “is expected to become economically self-sufficient by a predicted time, such as, without limitation, reemployment; completion of job training; or receipt of a sum due from the payor spouse pursuant to a judgment.” The payment period for this type of alimony would not exceed five years (except that the alimony term could be extended on a complaint for modification under certain “compelling circumstances”).

2. Reimbursement Alimony: The purpose of Reimbursement Alimony would be to compensate the recipient spouse for “economic or noneconomic contribution to the financial resources of the payor spouse, such as enabling the payor spouse to complete an education or job training.” This type of alimony would apply only to marriages of not more than five years; would be paid either periodically or in a one-time payment; and would be non-modifiable. Income guidelines applicable to other types of alimony under the proposed statute would not apply to Reimbursement Alimony.

3. Transitional Alimony: The purpose of Transitional Alimony is the “transitioning” of the recipient spouse “to an adjusted lifestyle or location as a result of the divorce.” This type of alimony would apply only to marriages of not more than five years; would be paid either periodically or in a one-time payment; would not continue for more than three years from the date of the parties’ divorce; and would be non-modifiable.

The above article is provided for general informational purposes. This article is based on proposed Massachusetts law and applies to Massachusetts only. Furthermore, it is not intended to apply to any specific facts or circumstances and should not be construed or applied as legal advice or legal opinion or as tax advice or as establishing an attorney-client relationship.

FEAR AND DIVORCE: A FOUR-LETTER TOOL FOR MOVING THE DIVORCE PROCESS FORWARD

by Marion Lee Wasserman

This article has been published in the Family Mediation Quarterly of the Massachusetts Council on Family Mediation, Summer 2011 issue.

Fear and divorce go together. Pointing this out to divorcing individuals as part of the divorce process can be extremely helpful. “Fear” is a powerful word. It puts the truth of the matter, emotionally speaking, on the table — plainly, clearly, non-euphemistically. When the divorce client I am representing is angry at his or her spouse and feels too hurt to negotiate, or when spouses in divorce mediation are each so convinced of their conflicting positions on an issue that constructive conversation has come to a halt, I often find that this evocative word — FEAR — is a key that can be inserted into the process to move it forward.

Take, for example, Matt, a husband in mediation who is angry at his wife, Jen, because, without prior notice to him, and in violation of a written mediation agreement they signed, she has withdrawn ten thousand dollars from their joint savings account and deposited it into a new, individual account in her name. Even though there is still a hefty sum in the joint account, and even though the parties agreed at the prior session to eventually divide the joint account fifty-fifty, Matt is hurt and angry because Jen moved a portion of the funds without talking it over first with him.

In this case, I might say to Matt, “You know … everyone going through a divorce is struggling with a set of fears. Everyone. It’s part of the territory.” (Pause. Matt nods. I continue.) “I’m guessing that you have a set of fears about what the divorce will mean.” (Matt nods some more.) “And I’m guessing that Jen does, too.” (I look at Jen. She is nodding, too.) “You each have a different set of fears. But there may also be overlap. Some fears may be the same for both of you. You each know what your own fears are. It may be really helpful to our process if you can each understand more about the other’s fears.” At this point, I may ask Jen what some of her fears are. I may then ask Matt about his. Or I may ask each party to tell us one of the fears he or she thinks the other party has.

In the above example, the conversation about fear leads to greater understanding and empathy between Matt and Jen. One of Jen’s fears is that she will have trouble functioning on her own after the divorce. She opened her own bank account in order to have funds available to help her start experiencing what it feels like to act more independently than she has in the past … especially now that she has moved into an apartment of her own. Matt begins to feel less hurt and angry when he understands Jen’s fears. Jen, for her part, apologizes for having acted unilaterally in withdrawing joint funds.

Although one might expect divorce clients to want to avoid the subject of fear, I have found that clients find it a relief to discuss fear head-on. Divorcing spouses are relieved to acknowledge and confront their own forebodings and to acknowledge each other’s as well. This acknowledgement comes from an authentic place in each individual, and for that reason it is a powerful tool for moving the divorce settlement process forward.

The above article is provided for general informational purposes. The case facts and client names used in this article are fictional. This article should not be construed or applied as legal advice or legal opinion or as tax advice or as establishing an attorney-client relationship.

ON THE BRINK OF REFORM: A CLOSE LOOK AT ALIMONY LEGISLATION PENDING IN MASSACHUSETTS

INSTALLMENT I: WHEN THE PAYOR RETIRES, WHAT THEN?

by Marion Lee Wasserman

Introduction

Family lawyers are abuzz in Massachusetts, talking of probable passage of The Alimony Reform Act of 2011. The statute has a title that speaks for itself: “An Act to Reform and Improve Alimony.” When it comes to alimony law, reform and improvement have been sorely needed in Massachusetts for some time.

Divorcing parties and the professionals who assist them need to know what to expect if the proposed law passes. Indeed, discussions of alimony in current cases are taking place in the shadow of possible near-term reform.

This article will take a close look at the proposed legislation, starting with the issue of retirement, and expanding to cover other key issues in subsequent installments.

The discussion of retirement concerns what the proposed legislation (the “Act”) calls “General Term Alimony.” General Term Alimony is alimony that is paid to an economically dependent spouse and that does not fall within any of the special, limited alimony categories established under the Act: namely, Rehabilitative Alimony, Reimbursement Alimony or Transitional Alimony. The three special types of alimony will be discussed in a separate installment.

When the Payor Retires, What Then?

The proposed legislation (the “Act”), if it passes, will be a help to the alimony payor who would like to retire and stop paying alimony. Under the Act, “General Term Alimony” terminates when the payor attains “full retirement age when he or she is eligible for the old-age retirement benefit” under Social Security. For marriages of twenty years’ duration or less, General Term Alimony is also subject to duration limits, which may, depending on the facts of the situation, result in termination prior to the payor’s retirement.

Note that the Act speaks in terms of “attaining the full retirement age ….” It does not say, “retires.” This would seem to suggest that even if the payor works beyond full retirement age, alimony will terminate. The language of the Act does not affirmatively say that termination will take place even if actual work continues, but this seems implicit in the Act’s wording. The Act does affirmatively say that “The payor’s ability to work beyond said age shall not be a reason to extend alimony ….”

This is complex legislation for a complex set of problems. So, not surprisingly, exceptions abound. Regarding the age-linked termination of General Term Alimony, the court may deviate from the basic rule, as follows. “When the court enters an initial alimony judgment, the court may set a different alimony termination date for good cause shown.” Also, if a General Term Alimony recipient asks the court to extend an alimony award (beyond the payor’s retirement or otherwise), the court may grant an extension for good cause shown, provided that a material change of circumstance occurred after the original order was entered and provided that reasons for the extension are ” by clear and convincing evidence” (a strong standard).

What is meant by “full retirement age”? The Act says that this means “the payor’s usual or ordinary retirement age for United States old-age social security benefits. It shall not mean ‘early retirement age’ if early retirement is available to the payor or ‘maximum benefit retirement age’ if additional benefits are available as a result of delayed retirement.”

If the Act passes, what is its effect on the retiring alimony payor whose obligation was established by an alimony judgment issued prior to the Act’s passage? The Act specifically answers this question: “… any payor who is eligible for the full old age benefit …or who will become eligible for said benefit within three years from the date this act takes effect, may file a complaint for modification one year after this act takes effect.”

Again, there is an exception. The Act does not under any circumstances permit a modification of an alimony judgment issued prior to the Act’s passage if the parties “have agreed that their alimony judgment is not modifiable, or in which the parties have expressed their intention that their agreed alimony provisions survive the judgment and therefore are not modifiable.”

The Act’s approach to retirement — alimony termination except when deviation is warranted for good cause shown — would provide some much-needed guidance in Massachusetts. Currently, unless the parties reach a voluntary agreement on termination, alimony awards are open-ended, and when a retiring payor returns to court seeking a termination of alimony, there is no presumption that alimony terminates absent good cause shown. The lack of such a presumption was expressly stated by the Supreme Judicial Court in 2009 in the case of Pierce v. Pierce; and, to the surprise of many family lawyers, the Court in that case ordered the retired payor to continue paying alimony.

No doubt about it … Massachusetts is home to many current and prospective alimony payors who have their fingers crossed, hoping the Act will pass.

MARION LEE WASSERMAN ATTENDED CONTINUING LEGAL EDUCATION PROGRAM ON LITIGATED DIVORCES

The litigation alternative lies just over the fence, a last resort for couples who do not reach a divorce settlement. Ms. Wasserman was honored to attend, as a guest of one of the presenters, a full-day Massachusetts Continuing Legal Education program on October 29, 2010 called “Trying Divorce Cases.” The presenters demonstrated the examination and cross-examination of witnesses on such topics as the valuation of a family business. Watching the litigation-focused “role-plays,” Ms. Wasserman was conscious of the cost and bitterness of divorce litigation and the contrasting benefits of mediation and collaborative law approaches.

MARION LEE WASSERMAN PRESENTED A WORKSHOP FOR PROFESSIONALS ON THE DRAFTING OF SEPARATION AGREEMENTS

Ms. Wasserman presented a workshop on November 19, 2010 at the annual Institute of the Massachusetts Council on Family Mediation. The workshop, designed for divorce mediators and lawyers, explored what works and what doesn’t work in written Separation Agreements. These are the all-important settlement agreements that divorcing couples present to the Probate and Family Court after completing the mediation process or working collaboratively with attorneys. As a divorce attorney and mediator and a professional writer, Ms. Wasserman takes a special interest in the drafting of clear, precise Separation Agreements. See also her article, “When Words Go To Court.”