What is a “Surgical” Divorce and how does it get started? A “Surgical” Divorce is generally the most cost-effective, simple divorce that is professionally done.  It is generally started by one of the spouses retaining a lawyer.  You want simplicity, but you don’t want to go pro se (i.e., without the benefit of legal advice).  But you both really want to keep the divorce under your control.

Can one lawyer serve both of you as attorney? The simple answer is “no.” Even though you might both want to hire one lawyer, you can’t.  Because you are two theoretical adversaries in a divorce action, you cannot have one lawyer representing both sides of the court action.  And, as much as you may think there are no disputes between you or remaining issues to address as you work towards divorce, one (or two) may raise its ugly head.  So to begin the process, one of you should hire a lawyer.

What the lawyer does. Let’s say you’re the one that hires a lawyer.  You’ll work with the lawyer to understand how you and your spouse’s proposed plan corresponds with the laws in your jurisdiction and the facts of your marriage.  During this process, you’ll discuss with your spouse any changes in the terms suggested by your lawyer and the reasons for the changes.

When you start working with the attorney, you may find legal or practical issues that you did not address.  You also may find that something you and your spouse thought was “fair” perhaps isn’t, in light of what you are learning about your mutual rights and obligations in the divorce from your attorney.  You might find some better ways of doing things as a result of suggestions by the lawyer, who has lots of experience in divorces.  And, the attorney will provide a helpful reality check for you (and indirectly, your spouse) as you work through the process.

Drafting the court papers professionally. Then your lawyer drafts all the papers to your satisfaction.  The most important and extensive of these is the Separation Agreement (sometimes called a Divorce Agreement), which sets out the terms of your divorce.  These terms are for the period of marital disengagement and also (very importantly) provide a roadmap for the future.

Your spouse’s attorney. At some point, your spouse may consult with an attorney on his/her behalf.  That attorney will provide helpful feedback, which should aid the process.  If there are any unresolved disagreements along the way, hopefully you and your spouse can resolve them readily, now that you have been advised of what the rules of divorce are.  Or if an issue proves intractable, you can seek resolution of that issue through mediation or marital counseling.  Through this, you remain on good terms with your soon-to-be former spouse and will probably come easily to settlements on all of the issues.

What a strong divorce is. The “Surgical” divorce is a strong divorce.  It complies with all the rules of law of the jurisdiction of your divorce, because it has been done professionally.  If the court needs to approve it, it will almost always gain the court’s approval, because the drafting attorney (and the reviewing attorney) have made it so.  It has been done professionally, so technical issues (such as the mechanics of a division of retirement accounts) have been addressed correctly.

Do the attorneys need to go to the divorce hearing? Sometimes, in a “Surgical” divorce, the spouses do not bring the attorneys  to court for the hearing.  Your attorney will let you know whether there are special issues that may make it prudent to bring one (or both) of the attorneys to the hearing.  If you have decided that your attorney will not be at the divorce hearing, your attorney can prepare you for all the questions the judge will ask, and what kind of answers are expected.  If you run into problems, you can ask for a short “continuance” and telephone your attorney who can be on call during the hearing date and time to assist if needed.

Conclusion: You would be surprised at how many divorce cases fall into the category of “Surgical” divorces:  two nice people, who, for whatever reasons, can’t stay married.  They want to move forward fairly and expeditiously towards divorce.  The process is client-driven.  It reduces the escalation of acrimony during the divorce.

As you can imagine, this type of divorce is generally the least expensive of the professionally prepared divorces.  As a professionally prepared divorce, it is drafted carefully and soundly, with practical and workable provisions.  The spouses benefit from the experience of divorce counsel.  This all bodes well for the client and his or her soon-to-be former spouse as they transition into post-divorce life.

© Laurie Israel 2011.

Laurie Israel and R. Paul Faxon’s article on use of transactional attorneys attorneys in consensual and collaborative divorces was published in the Boston Bar Association Family Section Newsletter in Summer, 2011.  To read the article, click here. 

About the authors: 

R. Paul Faxon is a transactional attorney, concentrating in closely held business law and commercial real estate, as well as a mediator and collaborative practitioner.  He is a past board member and former president of the Massachusetts Collaborative Law Council

Laurie Israel  is a active mediator and collaborative lawyer in Massachusetts. She is a former board member of the Massachusetts Council on Family Mediation and the Massachusetts Collaborative Law Council.  Laurie currently writes for The Huffington Post as a blogger on divorce-related topics, and is managing partner of Israel, Van Kooy & Days, LLC.

In the not so long ago times, people kept their loved ones in their parlors prior to burial.  I remember my parents telling me that my grandmother (who died in 1955) was wrapped in a shroud afterwards, and the family was around her during the day she died, and overnight, until she was buried. 

Our burials are very antiseptic arrangements.  The bodies are whisked away to a morgue and then sent to the funeral home.  Depending on our religions, we may (or may not) view the bodies of our loved ones.  We are taken away from physical association from the departed almost from the moment of death. This distances the grievers from their loved ones. 

Though separating the dead from the living is now tradition, it was no always so.  People used to have home funerals. Preparing the dead for burial and funeral rites were generally done by the friends and family members of the deceased.  This “old-fashioned” manner of dealing with the dead offers much.  It is essentially a return to a more traditional, personal approach to honoring the dead and going through the grieving process.  It may seem scary to us, but that is because we are so used to the other way, where the body disappears, and professionals handle everything.

If you want to find out more about this end-of-life option, a good place to start is by seeing the movie, A Family Undertaking  (PBS 2009), a film by Elizabeth Westrate, available on Netflix.   The movie follows several families and friendship networks in the United States during the illness of a loved one, through preparations prior to death, sitting with the bodies, the funerals, and the burials.  It is an eye-opening and touching experience. 

Another good source of information on home funerals is the classic Caring for the Dead:  Your Final Act of Love, by Lisa Carlson (1998).  It is still in print, and provides a wealth of information on home funerals, with articles written by various commentators on aspects of home funerals and caring for the dead.

In some states, home funerals are not permitted.  In Massachusetts, they are, but you have to follow the rules.   State health and sanitation laws and regulations must be scrupulously followed in the preparation and handling of the body, home funeral, and burial or cremation.   There are a number of individuals working in Massachusetts with people who want to have home funerals for their loved ones.  You can find Massachusetts information, find them, and get guidance by clicking on this link. 

http://homefuneraldirectory.com/archives/category/directory-listings/home-funeral-guides-and-consultants/ma

 The Commonwealth of Massachusetts has posted many useful resources addressing handling of bodies, burials, and cremations by family members for people planning home funerals.  http://www.lawlib.state.ma.us/subject/about/burial.html

 If you would like to pursue this matter further, it will take time to address all the legal and practical issues.  Therefore preplanning is important.  You can’t wait until your loved one (or you) dies.  So if having a home funeral interests you, start now to prepare.

© Laurie Israel 2011.  All rights reserved.

Alimony is a highly-charged word. 

Discussions of alimony generally get the strongest reactions from both men and women when working out the terms of a divorce.   Believe it or not, it’s generally more contentious than custody disputes over children or property division.

Men (the typical gender of the alimony provider) are understandably concerned.  They are no longer entitled to receive their wife’s love or services but still must pay.  To add insult to injury, sometimes alimony is payable even when the wife had decided to end the marriage.   And men are understandably concerned about the negative effect of alimony on the wife’s future motivation to make her own living. 

On the other hand, married women have often experienced significant decreased opportunities in their careers.  They often have made (by mutual decision with their husband) their top priority to take care of the family, home, children, and husband – to be a homemaker.  That’s why some commentators view a marriage as an economic partnership, with the right to alimony payments as essentially a payment of the marital partnership’s income interest.

It is the atypical cases that capture the attention of the media. We hear about lifetime alimony paid to an “able-bodied” spouse after a very short marriage.  Or a man who is ill and penniless, but must still pay alimony.  On the other side, we hear about cases where a wife whose marriage has ended has no career or work prospects and is unable to support herself adequately because of no or insufficient spousal support.   Alimony can be seen as a good thing or a bad thing, depending on whose ox is being gored.  

Massachusetts current alimony laws.  Presently, Massachusetts has very typical alimony laws.  The issue of alimony (as is the issue of property division) is based on an analysis of many factors, among them, age, opportunity for future acquisition, length of marriage, contribution to marriage (including as a homemaker), conduct, and employability.    

http://www.malegislature.gov/Laws/GeneralLaws/PartII/TitleIII/Chapter208/Section34

Nothing in the Massachusetts statute defines when alimony should end.   And Massachusetts judges don’t believe the statute gives them authority to order a termination date at the time an alimony order is set.   In a recent case, Pierce v. Pierce (2009), quite surprisingly (to most lawyers) the Court denied the request of a 66 year-old retired attorney to terminate alimony.  http://ivkdlaw.com/alimony-pierce.asp

Alimony laws tend to be quite vague, Massachusetts’ present laws included.  This is due to the multiplicity of case facts and situations to be decided.  When we advise our clients, we have to rely on an amorphous set of case decisions, anecdotal reports from colleagues on non-reported cases, various guidelines and pronouncements for lawyer bar associations and law groups.  Complicating the alimony landscape in Massachusetts was a 2009 change in an administrative ruling setting the child support amounts.  In this change, the ceiling of income subject to child support was greatly increased (to provide parity to married and unmarried parents).  As a result, everyone’s concept of what was the proper amount of an alimony to be paid became very unclear and confusing.

Massachusetts previous proposals.   Over the past few years, there have been a number of proposals to amend the Massachusetts alimony laws to provide more guidance for divorcing couples, their attorneys and the Courts.    In 2009, there were 2 competing proposals, neither which was enacted into law.  One proposal, S.B. 1616, simply granted judges the additional power to determine the duration of alimony order at the time it was set.  The other, H.B. 1785, proposed an alimony law that made a priority on increasing the earning capacity of the receiver and limiting alimony payments.  Neither proposal was enacted.

H.B. 1785 is instructive, because it was thought to be unduly punitive to potential recipients.  It had been devised and promoted by an alimony reform group, led by men who believed alimony laws were unjust to payors.

 The goal articulated in H.B. 1785 was to promote self-sufficiency for the payee spouse within a “reasonable period” of time.  “Reasonable period” was defined by the statute as a period which could not exceed one half the length of the marriage, or twelve years, whichever is less.  There was an exception:  if there were children under 16 that the supported party was taking care of, then the “reasonable period” could extend until the youngest child had attained 16 years of age. 

In H.B. 1785, the amount of alimony would be automatically reduced during the second half of the alimony term by ten percent a year.  If the payee party did not exhibit “willingness and diligence” to seek employment counseling and training, she would be punished by reducing the duration or amount (or both) of the alimony order.

H.B. 1785 sought to eliminate other important factors in the Massachusetts alimony statute, including conduct, employability, station (which means the lifestyles of the parties), the needs of a party, and opportunity of future acquisition.  These factors were struck in their entirety.  The result could be devastating for a wife who had foregone employment opportunities to create a family and maintain a home life. 

The new proposed Massachusetts Alimony Reform Act.  

In January, 2011, a new alimony bill was filed with the Massachusetts Senate entitled “An Act To Reform And Improve Alimony” to be known as the “Alimony Reform Act of 2011.

http://www.ivkdlaw.com/Massachusetts-Alimony-Reform-Act.asp

 It is quite thoughtful, and seeks to try to take out the uncertainty and unfairness in present alimony laws.  The Act seeks to balance concern for the well-being of the spouse needing support, with equity for the paying spouse.   The proposed law is quite unique, and may have a ripple effect on other states’ alimony laws if enacted.    The proposed Act has been supported by both the Massachusetts Bar Association and the Women’s Bar Association of Massachusetts, which means it may have an excellent chance of passing into law.

Here are some basic elements of the proposed Massachusetts Alimony Reform Act.

Durational Limits.  The duration of alimony under the Act depends on the length of the marriage.  It can be no greater than  50% of length of the marriage if the duration was 5 years or less;  60% if 10 years or less, but more than 5 years;   70% if 15 years or less, but more than 10 years; and 80% if 20 years or less but more than 15 years.  In a marriage which is 20+ years, the court may order alimony for “an indefinite length of time” but is not required to.  All these parameters can be modified if required “in the interests of justice”.   These durational parameters are similar to those that have been suggested by guidelines issued by American Academy of Matrimonial Lawyers, and by rulings of Massachusetts judges.

Termination at Remarriage and Cohabitation.  Under the Act, alimony ends at remarriage of the recipient (unless the parties specifically agree otherwise).  It should be noted that termination upon remarriage is not required by the Internal Revenue Code (to permit deduction of alimony payments), nor is it currently required under Massachusetts laws.  Under the partnership view of marriage as creating an income interest in a spouse’s (greater) earnings, this seems to be unfair as a blanket rule.   I have often suggested to people negotiating divorces that a modification of the blanket termination rule (such alimony as reduced by 50% upon remarriage) is a good thing for both parties.  It might encourage the remarriage of a spouse whose economic self-preservation would lead to a decision not to remarry.

The Act provides for suspension, reduction or termination upon cohabitation of the recipient spouse, with someone with home sharing a “common household” after at least 3 months of cohabitation.  Thus the Act seems to encourage cohabitation rather than remarriage.

Termination at Full Retirement Age.   To address the concerns raised in the Pierce case,

http://ivkdlaw.com/alimony-pierce.asp

the Act provides that alimony orders will end when the payor reaches full retirement age for social security.  This court can deviate from this rule for good cause.  An example that might result in deviation might be a “later-in-life” divorce when the parties are their 50s or 60s, with inadequate retirement savings and a payor who had intended to work past normal retirement age.   There also might be post-divorce extension for “good cause”, such as a material change in circumstances which might render the termination inequitable.

Amount of Alimony.    Many of the factors in the present Massachusetts alimony statute http://www.malegislature.gov/Laws/GeneralLaws/PartII/TitleIII/Chapter208/Section34

are included in determining the amount to be paid (and also the duration) of alimony under the Act. These include length of marriage, age of parties, economic and non-economic contribution to the marriage.  The term “station” has been changed to “ability of each party to maintain the marital lifestyle”.  Note the word “each” in that factor.  A recipient should not be entitled to a higher lifestyle than the payor.  (This is actually embedded in case law under Massachusetts’ current statute.)

The concept of marital post-divorce partnership is now newly reflected in a new factor termed “lost economic opportunity as a result of the marriage”.  Employment and employability, “including employability through reasonable diligence and additional training, if necessary”, harkening back to H.B. 1785, is now included as a factor.  Those mythical ex-wives who wish to sit in front of the TV watching Oprah and eating chocolates are now forewarned. 

Another guideline is established with respect to amount.  It is generally not to exceed “the recipient’s need” or 30 – 35 percent of the difference between the parties’ gross incomes at the time of the divorce.  (This comports with current Massachusetts alimony practice.)  Income subject to child support is deducted from the gross income of a party.  It is unclear as to what happens to an alimony order when children are emancipated.

Existing Alimony Orders.   Under The Alimony Reform Act of 2011, an ex-spouse in a case decided prior to enactment can never file on the basis of material change of circumstances to reduce or increase the amount of an existing alimony orders. But the Act itself is a “change of circumstances” that may entitle an ex- spouse to vary the duration of alimony in an existing order.  However,  if a couple had initially agreed that the alimony terms in their separation agreement were to be non-modifiable (this is often done with mutual advantage to each of the spouses), the duration cannot be changed after the Act is passed.

Massachusetts again a Beacon.   After many years of discussion, Court decisions, theorizing, and uncertainty, Massachusetts may be closer now to an alimony system that works better, is fairer to both parties, and reflects equity.

As with its leadership in free public education, abolition of slavery, enactment of same-sex marriage and health care reform, Massachusetts may once again serve as a beacon to the country. It is poised to do just that in the formulation and anticipated enactment of “An Act to Reform and Improve Alimony”.

http://www.yourfamilymatterslawblog.com/massachusetts-alimony-reform-act-of-2011/

© 2011 Laurie Israel.

 “Divorce Tourism” is the invention of Vijesh Thakkar, owner of a Mumbai tour company, KV Tours and Travel.  After watching his best friend’s marriage disintegrate, Thakkar wondered if he could help other married couples heading for divorce. http://www.time.com/time/world/article/0,8599,1941208,00.html 

With this impetus in mind, he launched “divorce tourism” packages in 2009 to help couples who are heading towards divorce.  The idea is that the couple embarks on a week-long stay in a resort with time and leisure to heal their relationship. 

At first, Thakkar thought that a relaxing vacation in a quiet destination could regenerate a marriage. But   couples having marital problems often continue fighting during a vacation.  A couple could not identify and resolve their communication difficulties, even in the relaxing atmosphere of a vacation. 

Then Thakkar’s inspiration was to add the option of including a “tour guide” with the couple, who is a marital counselor.  Sometime this tour guide was introduced to the couple as a marital counselor.  But due to the stigma of divorce and resistance to psychotherapy in India, sometimes the vacation and tour guide had been secretly arranged by a concerned friend or parent.  In this case, the tour guide traveled incognito.  As the vacation unfolded, the tour guide would discretely help the couple resolve communication difficulties without revealing his true identity. 

The recent Hollywood comedy “Couples Retreat:  Return to Eden” is a lamehearted comedy about four couples who attempt to improve their marriages by undergoing counseling on a tropical island.  

If we’re to take this concept seriously, we should imagine a vacation involving one couple and one “tour guide”  –  a professional who deals with marital problems.   In societies where therapy is widely accepted, this could be conducted openly and could be a sound approach for marital therapists and other professionals to address marital problems.  In fact, it might be much more conducive to constructive thinking and conversation than the typical therapy session sitting on chairs in a drab office.

The “tour guide” could either be a marital counselor, or another professional who deals with marital problems, such as a marital mediator.  In marital mediation, a mediator works with a couple using mediation techniques to identify and understand communication problems.  While there is some overlap between marital counseling and marital mediation, either approach can be very helpful to a couple whose marriage is in trouble.  http://www.maritalmediation.com.

The advantage of taking a vacation with a “tour guide” is that there is plenty of time to view the couple’s interactions in real time, not bounded by an hour therapy or mediation session.  It is intensive.  The “tour guide” can take notes on the spouses’ verbal interactions, sometimes combined with audio recording.  That way, exactly what was said could be analyzed with the “tour guide” and the couple.   Negative communications and misunderstandings can be revealed.  The couple can be helped with ways to address and minimize corrosive interchanges. 

Often struggling couples will fight quite viciously about trivial matters. The “tour guide” can point out what the couple does not see – they are arguing at times about nothing important.  When the couple sees actual data about their arguments, they sometimes can let go of some thought patterns and bickering that are causing corrosiveness in the marriage.  When a marriage starts to improve, the trajectory for further improvement is set, and things can gradually get better. 

Of course, “Divorce Tourism” would be expensive, based on cost of a vacation for three plus the professional fees of the “tour guide”.  But if it could increase the chance of saving the marriage, it’s certainly worth considering.

While “Divorce Tourism” will not always be successful in forestalling a divorce, in many cases it could be a powerful tool in setting a couple back on a fulfilling marital path.  If two people wish to remain married, but cannot figure out how because of incessant conflict, it may be a creative opportunity for them to get to the bottom of what is destroying their marriage.  

Most marriages are killed by a litany of petty unresolved arguments, unrealistic expectations, and overemphasis on unimportant disputes.    For these spouses, “Divorce Tourism” may be a fruitful alternative to a visit to a divorce attorney’s office.

© Laurie Israel 2011.

Mental decline is something else. It interferes with your quality of life, your ability to handle the details pertaining to day-to-day living – shopping and making food, paying bills, making sure your retirement income and assets safe (difficult in these times!), and are being used for your care, and making sure you see your doctor and take your pills.  When mental decline is severe, another person needs to act for you, either through a health care proxy, a power of attorney, or a court guardianship or conservatorship proceeding.  Mental decline so severe as to be deemed incompetency needs to be determined as a legal and practical matter, so that outside care and supervision for the sufferer can be put into place.

Competency is legal term that means that a person has the soundness of mind and mental capacity to be qualified to act legally for him or herself.  Capacity means the ability to receive, process, and perform mentally.  Both terms relate to an intelligent understanding and perception of one’s options and one’s actions. 

We lawyers know legal competency when we see it.  People entering into agreements and contracts, and writing wills and other estate planning documents must be competent in order for the documents to be legally binding.  Therefore, lawyers need to constantly evaluate clients’ competency (and incompetency) in assessing clients’ ability to think about, formulate, and execute, documents.  Another way to articulate legal competency is when a person is able to handle his or her financial affairs and make rational and considered decisions about one’s own health care and medical treatment. 

When working with a client, we are looking for several factors: (1) whether the client is able to articulate the reasons behind his or her decisions consistent with the client’s own identified goals; (2) the degree of alertness of client’s state of mind and ability to understand relevant information; (3) whether the client is able to understand the nature of his/her own situation and the consequences of his/her decisions; and (4) whether the client’s decisions are consistent with the client’s lifetime commitments and basic values.  Michael Schuster, Representing Older Persons with Diminished Capacity – Ethical Considerations, 263 Practising Law Institute/ Estate Planning & Admin. 339 (May, 1998).

This all boils down to whether the client understands the alternatives available and whether the person can make a decision based on the facts and appreciate the consequences of his/her decision. 

Competency is not an “all or nothing” attribute.  A person might not be able to balance his checkbook, but can address medical decisions or make a last will and testament.  Some people are competent to do some things and not competent to do others.  Some people are bad at handling their own money, but are very sure as to whom they want to have their money after their death.

Diminished capacity is really a sliding scale between full competency and something much less.  Sometimes a person might be competent one day and lack competence the next day.  We are taught as lawyers that a person who is competent when he executes a last will might be incompetent two hours later, but the will he made when competent will be legally binding.  In cases of diminished capacity, we lawyers are careful to provide evidence in the file of a person’s competence to execute the document, such as writing down in-office discussions with the client in the client’s file.

The client, of course, needs to know what he or she is signing.  This means that when discussing the drafting and review of various legal documents, the client must understand the need for a particular document and what the document does. 

There are slightly different standards with important differences in competency for different types of legal documents.  Testamentary capacity for executing wills requires knowing the objects of one’s bounty, the property held, and the disposition of the property one makes in one’s last will.  It’s actually a lesser standard than that which is required to enter into a contract.  To appoint a health care agent or a future guardian, a lesser standard applies – you need to know whom you wish to act for you if you cannot act for yourself. 

To make a gift, you must understand the nature and effect of your donation.  To grant a deed and enter into a contract (including a divorce agreement), you must be able handle your financial affairs and be able transact business.  All of these are subject to a sliding scale of competency and need to be evaluated on a case-by-case basis at the time you are working with the client.

Determining mental competency is not an exact science, but is something lawyers must do.  Because lawyers are concerned about competence when a client faces financial matters and decisions (and because we deal with client finances and money issues primarily), we are a bit mystified when the determination of whether someone has legal competence to handle business matters is relegated to physicians and psychologists, but that is the state of the law in Massachusetts.

The Massachusetts Uniform Probate Code (MUPC) requires a medical certificate in order to have a guardian or conservator appointed to make decisions for an incapacitated person.  MUPC Section 5-303 and 5-404.  The medical certificate must be completed by a registered physician, a licensed psychologist, or a certified psychiatrist nurse clinical specialist. 

There are questions in the form of fill-in-the-boxes regarding overall impairment (alertness, memory, emotional and psychiatric functioning (i.e., ranging from “No” impairment to “Severe” impairment).  There is a question as to how these impairments cause the individual to “have an inability to receive and evaluate information or make or communicate decisions.”  This standard seems to be drawn with a much cruder brush than the standards of competency applied on a daily basis by lawyers doing their work with clients, because we test our clients with the actual work at hand that we are doing with the client and not in some abstract way.  

If you or anyone you know is having cognitive impairment that is causing problems, perhaps the person can put planning documents into place (such as powers of attorneys, health care proxies and last wills and testaments) using his/her own decision-making before the time for action has passed and legal competency is no longer present.

© 2010 Laurie Israel.  All rights reserved.

Katzman v. Healy

Katzman v. Healy (No. 09-P-2341) was an appeal by the former wife, Anna Katzman, who had sole physical custody of the two children, to move with the children out-of-state.  The former husband, Timothy Healy, had already remarried and had a child of the second marriage.  Katzman met a man who lived and worked in the New York metropolitan area, to whom she became engaged and married prior to the trial, and a baby was expected.  She appealed a probate court decision denial of her relocating custody of the children of the marriage to New York or Connecticut.

The lower court had changed the custody to joint, based on time spent with the children.  The appeals court disagreed with the analysis of time spent, as it only tabulated the children’s awake time with parents, and not the backup time of a custodial parent – i.e., when the children were sick or needed a parent’s assistance at unexpected times, which role was the mother’s.  The court found that the grounds of modification of parenting time were not in the findings of the lower court and reversed on this issue.

With respect to the removal issue, the Appeals court in Katzman v. Healy noted the Yannas test applies to cases where one party has physical custody.  Yannas v. Frondistou-Yannas, 395 Mass. 704 (1985), and Mason v. Coleman, 447 Mass. 177 (2006) applies in cases of joint physical custody.

If there is joint custody of the children, under Mason,  it is presumed that the children are fully integrated into both households and consider that they have two homes.  Therefore,  the children’s relationships with both parents need to be protected, insofar as possible.  In joint custody cases,  “judge’s willingness to elevate one parent’s interest in relocating freely with the children is often diminished . . . “.  Mason v. Coleman, 447 Mass. at 184-185.

The  Yannas test, applicable where one parent has primary custody, provides a two-part test.  First, there must be a good reason for the move, i.e., a “real advantage” to the custodial parent moving, such as a necessary job change that would greatly improve the custodial’s parent ability to support  the children.  That was satisfied in the Katzman case.  The former Wife wanted to move to be with her new husband  (the father of the new child), and was not motivated out of the intention to deprive the father of his relationship with his children.  The new husband could not feasibly move his employment to Massachusetts.

Secondly, according to Yannas, the move out of state must be in the best interests of the children.  In order to determine this, there must be a balancing of interests – the advantages and disadvantages of moving or not moving  not only to the children, to the parent who has sole physical custody.  This is a significant factor in the “best interests of the children” analysis, because the best interests of the children are so interwoven with the well-being of the custodial parent,  that the determination requires that the interests of the custodial parent be taken into account.  Yannas, supra, at 710.

The Appeals Court said if it is found that her new husband cannot relocate his employment to Massachusetts, fact finding needs to be done as to how the mother’s “unhappiness from raising her children (including the newborn child of the new marriage) in Massachusetts while living separated from her husband would affect the children.”  Katzman was remanded to the lower court for proper findings on the removal issue.

Altomare v. Altomare

Another child custody removal case decided by the Appeals Court in September 2010 was Altomare v. Altomare, No. 09-P-858 .  This case involved a former wife with whom the three children (ages 11-18) made their primary home  who asked for removal with the children from West Boylston to Scituate, a town in Massachusetts, 75 minutes away by car.

The Appeals Court applied the Yannas test.  Under the second prong, the benefit to the children flowing from any improvement in the quality of the custodial parent’s life, must be weighed against the possible adverse effect of elimination or reduction of the children’s contacts with the noncustodial parent, and how this will affect the emotional, physical, or developmental needs of the children.  Pizzino v. Miller, 67 Mass. App.Ct. 875, 870-871 (2006), quoting from Yannas, supra, at 711.

In Altomare, the Wife who was divorced after 20 years of marriage found it difficult to remain in the small town where she would often run into the woman with whom the husband had been having a romantic relationship that broke up the marriage and which was the Husband’s home town.  The Wife had a support network in Scituate that she felt could help restore her emotional health.  She wished a fresh start, and felt the mood change she expected to have would have a huge positive impact on the children.  The probate court denied her request to move.

The Appeals Court believed that the probate court did not adequately assess the second prong of Yannas, and remanded for a determination of the best interests of the children.  In particular, the judge was instructed to determine the extent to which the wife’s unhappiness in West Boylston affects her children and the practical effects of the move where she expected to have a better quality of life, therefore benefitting the children.

Many patients are now living longer with incurable diseases (such as cancer) so that it is difficult for people to accept the information from their doctors that no further options are available.  (It is also difficult for doctors to admit that they are at the end of their ability to help a patient.)  What results is a trend to pursue a cure, even though it often destroys the possibility of good quality last days, surrounded by loved ones, in complete physical comfort at end of life. 

Studies show that less aggressive end-of-life care can actually result in living a few months longer and with less depression.  But in order to have that, one must give up hope for a cure.  I have never been in that situation and don’t know whether I would opt for aggressive treatment, or if I would choose palliative care. It is a very weighty decision. 

When making end-of-life decisions, you (or your families) need to be informed of all of the medical and palliative options.  Younger terminally ill patients may opt for more aggressive treatment, especially those with young children.  But most terminally ill patients choose comfort care after receiving realistic information about their change of survival and how difficult and painful future treatment is likely to be. 

It is good to have end-of-life conversations with your family and significant other well before the need for palliative (or medical) care.  However, it doesn’t always help when the time comes.

I had many of these discussions with my former mother-in-law, Marian (who remained my friend after the divorce).  She brought up all of these discussions.  She did not want to live a life that she could not reasonably enjoy.  The problem with her dementia, which crept up slowly on her, was that by the time it was advanced, she was in no position to make arrangements to end her life.  We can’t help her now.  (It would be murder for anyone to purposely end her life.)  Assisted suicide is a crime in all U.S. states except Oregon, Washington State, and Montana.  (It is legal in some countries around the world.)

Marion is now almost 98 years old and has been essentially a vegetable for 5 years.  It is not what she wanted.  She told me many times. 

You could look at it as a waste of resources – money spent on caretaking a 98-year-old woman who will never get better, unless there is a medical advance tantamount to a miracle.  This money could be used for dementia research, or for starving people in the world, or to help fix environmental problems.  Another (more positive) way to look at it is that Marian’s caretaking is providing a livelihood for her caretakers.  

What if my mother-in-law had been given a choice of ending her life 5 years ago?  Could she have made that decision and put it into effect?  Under current laws, if she had decided to end her own life, she (then 93 years old) would have had to figure out how to do it, accumulated the necessary pills, and take them, without family assistance.  It’s a  set of actions and requires determination that very few people can accomplish.  

Advanced cancer is different than dementia.  With advanced cancer, when there is no treatment, you will die without having to accumulate pills to do it yourself.  So people with terminal illnesses such as cancer do have the option to opt for palliative care.  In a way, that is a fortunate silver lining to having a disease such as cancer.

Among the standards are that there was opportunity to obtain separate legal counsel, there was no fraud or coercion in inducing the agreement, full disclosure is made, there is a knowing waiver of rights to a judicial equitable division of marital assets and other martial rights in the event of a divorce.

And most importantly, the Court held that a postnuptial agreement must be “fair and reasonable at the time of the execution and at the time of divorce”.  This means that the postnuptial agreement must be more like a separation agreement (one made at the time of divorce) than a prenuptial agreement (one made before the marriage).  An earlier case, DeMatteo v. DeMatteo, 436 Mass. 18 (2002),  had provided a lesser standard to prenuptial agreements than separation agreements, stating that in order to be enforceable, prenuptial agreements they must not be “unconscionable” and must not strip a spouse of viritually of  of his or her marital rights.   As another protection to the contracting spouse against whom the contract is being enforced, it is the spouse seeking enforcement that has the burden to satisfy the court as to all these critia.

Ansin v. Craven-Ansin is the first Massachusetts case addressing postnuptial agreements since Fogg v. Fogg, 409 Mass. 531 (1991).  In Fogg, parties entered into a postnuptial agreement which required the Husband to transfer valuable properties to the Wife.  Shortly thereafter, the Wife filed for divorce.  The Court held that the Wife had not entered the agreement in good faith, and in famous footnote 2 “left for another day” the question as to whether marital agreements were valid.

July 16, 2010 was that “other day”, and SJC provided cogent, protected and reasonable standards which will assist spouses in drafting the agreements that will protect and promote their marriages.

In our marital mediation practices, we find couples who want to preserve their marriages, but need our help. Too often struggling spouses think that divorce is their only choice.  A carefully conceived written postnuptial agreement addressing a certain problem that is causing the marriage to derail is often exactly what a couple needs to eliminate the conflict that is tearing them apart.  In our work, we have seen many marriages begin to flourish again after a postnuptial agreement is carefully conceived and signed by the spouses.

To see the oral argument on April 7, 2010 by counsel for the spouses in the Ansin v. Craven-Ansin case in front of the Supreme Judicial Court, click link here.  http://www.suffolk.edu/sjc/archive/2010/SJC_10548.html