Navigating Changes in Alimony Over Time

The purpose of alimony “is to avoid any unfair economic consequences of a divorce, even after property is divided and child support, if any, is awarded.”[1] Two Massachusetts cases illustrate how alimony changes over time, particularly when one spouse reaches retirement age.

In Pierce v. Pierce (SJC-10381), Rudolph Pierce, the former husband, had been paying $110,000 annually in alimony while earning approximately $450,000 each year as a partner in the law firm where he worked. At the age of 65, Pierce voluntarily retired and filed a motion to eliminate the alimony he was paying to his ex-wife Carniece due to his retirement. At the time of his retirement, Rudolph Pierce had remarried and his second wife earned $125,000 annually. In this case, the judge ruled that a reduction of alimony to $42,000 a year was fair for all parties involved. On appeal Rudolph Pierce again asked the court to eliminate his alimony obligation. The appeals court however found that while reaching retirement age is certainly a factor to consider in alimony judgments, the opposing party’s financial situation is also important to weigh when considering an alimony modification. In this case Carniece Pierce had recently become unemployed, had not received any severance, was not remarried, and at age 64, was not receiving Social Security benefits.  Furthermore, the judge concluded that while Rudolph was able to maintain the same standard of living that he had enjoyed pre-retirement, Carniece would not be able to maintain that standard without Rudolph’s alimony support. The judge also concluded that Rudolph would be able to afford the reduced alimony payments of $42,000 annually.

In contrast, in the case of Ross v. Ross (10-P-1130), the judge allowed that upon Adam Ross’ retirement, he no longer needed to pay alimony. In this case the judge allows that the defendant’s good faith retirement at the age of 65 would prevent him from being able to pay alimony due to his decreased income. Furthermore the judge demonstrates how Joan Ross’ need for alimony has diminished in the time since their divorce. Going back to the definition of alimony, intended to level the playing field, the judge found that in the 10 years since the divorce, the parties children have become emancipated, Joan can be self-supporting based on her skills, education and experience, and she does not need alimony to maintain her lifestyle. Another point of note is that at the time of the appeal, Adam was nearly 66 while Joan at almost 14 years his junior has more earning potential through employment or investments.

These two cases illustrate how the former spouse’s current economic situation remains a central factor when calculating alimony, even after one party reaches retirement age.

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[1] http://legal-dictionary.thefreedictionary.com/alimony

Run to Home Base

On Sunday May 22 I had a chance to compete in my very first road race. Using my bike that I pedal with my arms, I raced the 5.6 miles in a little over an hour finishing over home plate at Fenway Park. The Run to Home Base is an annual event that seeks to raise money for veterans suffering from traumatic brain injuries or combat stress disorders. These invisible wounds are just as detrimental to veterans, but often times are stigmatized or receive less attention than physical wounds. The Home Base Program also provides support and treatment to families of veterans who are coping with how to best care for an injured loved on. This year the race attracted over 2,000 runners and raised $2.6 million for veterans and their loved ones in the New England area. It was very gratifying to make my road race debut supporting such a worthwhile cause!

Brian crossing the finish line in Fenway Park. Courtesy of the Boston Globe.

Read the full article here

Postnuptial Agreements

There are three different types of marital agreements, each requiring a different standard of review by a judge. The three are: prenuptial agreements, postnuptial agreements and separation (divorce) agreements. This blog post will focus on postnuptial agreements.

What is a postnuptial agreement?

A postnuptial agreement is a contract between two spouses. This agreement is different than a pre-nuptial agreement in that it is signed during the marriage. A postnuptial agreement is entered into assuming that there will be an ongoing, viable marriage.

There are two basic rules or principals that should be followed to safeguard your postnuptial agreement: (1) full and fair disclosure; and (2) separate and independent counsel.

What should you consider when drafting a postnuptial?
In general, you will want to consider and discuss the following with your spouse:

• Discuss all the assets and debts of your relationship as well as future income opportunities.
• Be open and honest about your assumptions and expectations of how property would be handled in the event of death or divorce.
• Draw up and sign the agreement with the help of two lawyers. It is critical that you are each represented independently to maintain the legality of the contract.
• Revisit the contract periodically, especially if your lifestyle or financial status changes drastically. If you move to a different state, check to make sure the laws or legal precedents don't affect the status of your contract.

What should be included in a postnuptial?
*This is not an exhaustive list and you should obtain separate independent counsel before drafting or signing any agreement or contract.

• List all assets, liabilities, income, and expectations of gifts and inheritances.
• Describe how post-marital debts will be paid.
• Decide who, or if both of you, will own the marital residence and secondary homes in the event of death or divorce.
• Specify the status of gifts, inheritances, and trusts either spouse receives or benefits from, whether before or after marriage.
• Clarify what will happen to each type of property, whether jointly or individually owned, such as real estate, artwork and jewelry.
• Figure out alimony, maintenance, or spousal support, or provide for a waiver or property settlement instead of support (to the extent allowable by law).
• Detail death benefits, stating what you will provide for in your will. 

What about postnuptial agreements in Massachusetts?
The Supreme Judicial Court (SJC) found that postnuptial agreements in Massachusetts are enforceable if certain conditions are met. These conditions, outlined by the court, are as follows:

• The opportunity for each party to obtain separate independent legal counsel of their own choosing;
• No fraud or coercion in obtaining the agreement;
• All assets fully disclosed by each party before the agreement was executed;
• Each party knowingly waives in writing the right to a judicial equitable division of marital property and assets in the event of divorce;
• The terms of agreement are fair and reasonable at the time of execution and at the time of divorce.

Restraining Orders 101: Part 1

This is a two part series about the Restraining Order process in Massachusetts. Part 1 will give information if you are considering requesting a restraining order while Part 2 will detail the process of obtaining the protective order. 

Restraining Orders 101

If you or a loved one is experiencing domestic violence, a restraining order may be a valuable tool to keep you safe. If you are in immediate danger, call the police. Restraining orders, or 209A protective orders, are court orders that prohibit an abuser from coming within a certain distance of you or contacting you over the phone, e-mail, etc. and are thus designed to prevent further abuse. When you file for a restraining order, it is a civil claim. This means that the person you are accusing will not be sent to jail or fined if the restraining order is issued. However, if the abuser violates the terms of the restraining order, it does become a criminal issue, meaning they could face either fines or jail time.

In Massachusetts there are several important things to know when considering a restraining order. First of all, only certain types of relationships are eligible for restraining order coverage. These relationships are:

§  A substantive dating relationship

§  Living together in the same household

§  Engaged or married

§  Have a child together

§  Related by blood or marriage

When you appear before a judge, the judge will only grant the restraining order if the relationship falls into one of the above categories and is therefore covered by law and if he or she believes there is “a substantial likelihood of immediate danger of abuse.” If a restraining order is granted, the abuser will need to surrender all guns and gun licenses to the police. This rule enacted by the Lautenberg Amendment of 1996 affects all people subject to restraining orders including those with who carry guns for their occupations such as police officers or military personnel.

What Soldiers Need To Know about USERRA Part III

A.   Overview of Part I:

•  Notice To Employers – You have an obligation under the law to provide advance written or verbal notice to your employers for all military duty (exceptions apply).
•   Important Time Considerations – You must adhere to strict time lines when applying for reemployment or reporting back to your civilian job (based on the time you spent on duty).

B.    Overview of Part II:

• What Circumstances May Disqualify You From Asserting USERRA? - 1) Dishonorable and/or bad conduct discharge; 2) “Other than honorable” discharge (each branch of the military has specific rules governing this type of discharge); 3) Dismissal of a commissioned officer via court martial or a Presidential order in time of war (see 10 U.S.C. 1161(a)); and 4) Dropped from the rolls by the President for being absent without authority for more than three (3) months or imprisonment by a civilian court (see 10 U.S.C. 1161(b)).  
• Documentation Upon Return - 1) Your timely application for reemployment; 2) You have not exceeded the five (5) year service limitation; and 3) Your separation from service was other than disqualifying (see 38 U.S.C. 4304). 

C.    Part III:
       Although you're re-employment should be safe and secure if you follow the rules, your employer does have defenses to rehiring you. The defenses your employer may utilize are called affirmative defenses. This means that the employer has the burden of proving them by a preponderance of the evidence (i.e. anything over 50%). Two affirmative defenses your employer may utilize are: 

1. Changed Circumstances: Re-employment may be excused if the employer's circumstances have changed so that re-employment of the service member would be impossible or unreasonable. An example of this scenario would be a reduction-in-force that would have included the service member.
2. Undue Hardship: Employers are excused for making any effort to qualify the returning service member or from accommodating individuals with service-related disabilities only when doing so would be of such difficulty or expense as to cause "undue hardship" on the employer.

       If you have any questions or concerns about your re-employment or lack thereof you will find information and technical assistance provided by the Veteran's Employment and Training Service (VETS) of the Department of Labor (see VETS). VETS investigates complaints and attempts to resolve them. Filing of complaints with VETS is entirely optional. You may therefore freely choose to pursue a claim with private counsel.  

New Anti-Bullying Statute in Massachusetts

The recent news about sentencing in the tragic case of Phoebe Prince throws the problem of bullying in our nation’s schools back in to the spotlight. Prince was 15 years old when she committed suicide in January of 2010 in South Hadley, MA following relentless bullying by her peers. Her death has elevated awareness of bullying and has spurred legislative changes around the country.

Massachusetts passed a new anti-bullying statute in May 2010 in direct response to the incident. St.2010, c.92 titled Bullying in Schools contains several important provisions designed to protect students from bullying and harassment. The law specifically addresses cyber-bullying a new type of bullying in today’s digital world. With Facebook, cell phones and other forms of electronic communication children who were once solely bullied while at school are now subject to a relentless wave of harassment following them when they leave school at the end of the day. The law also requires schools to create a plan to implement programs both to prevent bullying and provide successful intervention in consultation should incidents of bullying come to light.

Bullying is of particular concern to children with disabilities since they are already in a vulnerable state. According to a recent survey by the Massachusetts Advocates for Children, 90% of parents with autistic children reported that their child had been the target of bullying. In response to this concern, the Department of Special Education has issued a Technical Advisory with guidelines and resources concerning bullying and special needs children. The Advisory places particular emphasis on addressing bullying prevention in your child’s IEP and ensuring that your child has a safe person to go to if they are being bullied. The IEP should have a section for educational professionals to comment on whether your child seems withdrawn or is not socializing appropriately because of bullying. This portion of the IEP should also provide tools for the child to use themselves when confronted with bullying.

Read the full Massachsetts Statute here


Read the Technical Advisory from the Department of Special Education here

Divorce Process

This blog will explain the steps in a divorce, and what you will need to provide an attorney.  As you navigate through the process,  the first document you will need to bring is your original marriage certificate.  Sometimes clients want to keep this for their records or just simply to remember a time in their life.  The court however needs the original document.  The divorce will not be able to proceed unless the original is filed with the court. The second set of documents you will need are three years of your tax returns.  These forms can include 1099s 1098s and W-2's.  You also need three most current pay stubs from your employer.  It should be noted there are no gotcha moments in family law.  Everything is about disclosure and the best interest of the child.

When you get to my office (www.bmjr law.com), I will have the necessary forms for you to fillout. These forms include the Complaint for Divorce, Affidavit Disclosing Care and Custody, Statistical Report, and finally the Military Affidavit.  If applicable, you may fill out an Affidavit of Indigency which waives the court costs of $215.  The above-mentioned forms tell the court information about you, such as whether a spouse is in the military or if there are any care and custody proceedings already pending within the court system.

Once the divorce paperwork is filed, you should attend the parent education class, which is a requirement under Massachusetts law, if the parties have a minor child.  It is important that you attend this class.  Otherwise, the divorce will not proceed.  The parent education class seeks to provide guidance for children as their family structures are changing.

Once you've completed the parent education class you should begin working on the financial statement.  The financial statement breaks down your expenses in your life to determine how much child support and/or alimony you should receive.  I heard a judge recently say at a conference that both child support and/or alimony should not exceed 1/3 of the defendants income. Typically the longer the marriage, the more likely you will receive alimony. 

The opposing party has 20 days to respond to the complaint for divorce.  Once the 20 days have past I can file for a pretrial conference where the judge will attempt to settle the case or determine whether the case should go to trial.  Prior to the pretrial conference a four-way meeting must occur.  The four-way meeting is to allow all parties to discuss the issues in the case to determine which issues they agree or disagree on.  It is important to approach the pretrial conference with an open mind and a willingness to compromise.  This may be very difficult in some cases I realize.  At the pretrial conference the judge will determine the status of discovery and set a trial date.  If needed, he may also direct the parties to a probation officer to see if an agreement can be reached if the case is appropriate.  The vast majority of divorce cases settle during the pretrial phase.  Trials usually are over custody issues and can be painful for all sides.  It is important to remember that the best interest of the child is what's most important.  I hope you found this blog to be helpful in outlining the basic process of divorce.