Ludwig v Ludwig

February 14, 2017 by  
Filed under Alimony, Divorce, Matthew Solomon

by Matthew Solomon, Esq.

Ludwig v Ludwig, 15-P-1177 (slip opinion) (2017).

Massachusetts Appeals Court case in which husband appealed a Probate Court’s alimony decision to include unvested stock options as income that had not been included in the parties’ equitable division after the implementation of the time rule laid out in Baccanti v Morton.

The Appeals Court affirmed the Probate Court’s decision on the issue of double-dipping, stating that, “Here, there is no such injustice because the contested shares were not part of the equitable distribution of assets; by operation of the time rule, they were assigned to and retained by the husband outright.” In other words, precisely because the shares were not part of the division of marital assets, they could then be considered a source of income when calculating alimony. The Appeals Court further pointed out that the income for the source of the property assignment was distinguishable from the source of the alimony obligation.

The husband also contested the Probate Court’s ruling as to what date to use under the time rule when determining the value of the unvested stock options. The basic idea is that the later the date used to determine the value translates into a greater number of shares available for distribution. The Probate Court ruled that the date to be used was the date closest to the when the hearing was actually held on the parties’ contested issues because the court found that neither party had acted in any way to drag out the case. The husband argued that the Probate Court should have used the date closest to the date that the parties separated, which was about a year and half prior, arguing that the Probate Court did not make any findings on the wife’s “contribution to the maintenance of the unvested options” subsequent to the parties separation because the parties did not provide evidence or testimony as to the wife’s contribution during that period. The Appeals Court affirmed the Probate Court’s decision as to which date to use under the time rule, stating that the judge was not limited to only considering financial contribution to the acquisition of assets and referenced the language of M.G.L. c. 208 § 34 that identifies the different types of contributions that parties may make to a marriage.

The court discussed situations in which property has been divided, and nonetheless, income earned from the part of the property retained by a husband was part of the income subject to alimony. The court cited two specific cases: In Adams v Adams, 459 Mass. 361 (2011) the SJC supported the ruling of the trial court to identify a husband’s partnership interest as a marital asset to be divided and valued, and to also include any expected future income from this interest when calculating child support. In Champion v Champion, 54 Mass. App. Ct. 215 (2002), the Appeals Court affirmed the ruling of the trial court that assigned a value for husband’s interest in his business for the purposes of division of marital assets, and then considered any future earnings from this business when determining husband’s support obligations.

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New Standing Order about Parent Education Course from the Massachusetts Probate and Family Court

May 12, 2016 by  
Filed under Matthew Solomon

by Matthew Solomon, Esq.

On April 11, 2016, Chief Justice Angela M. Ordoñez signed Standing Order 2-16, Parent Education Program Attendance. The new Order, which takes effect on May 1, 2016, makes some significant changes to the already existing rule that requires divorcing parents of minor children (children under 18 years old) to attend a Parent Education Program. There are Parenting Programs located in every county of Massachusetts. The Program consists of two 2 ½ hour long classes, which most often begin sometime after 5:00 p.m. (some programs have morning classes). The parties may not attend the same class and each party is responsible for paying $80 for the class fee.

The most important change that the new Order makes is that parties are now required to register with an approved program within thirty days of service of the original divorce complaint. This is a huge change from before, where there was no such time limit requirement of the parties. Prior to Standing Order 2-16, parties were required to attend and provide proof of completion in a program before the court would grant a divorce judgment. This would often mean that divorces were actually delayed because one or both of the parties had not fulfilled this obligation. In other words, this new onus on the parties may help expedite the entire process. A couple of things to note related to the new 30 day requirement: (1) Once a party is registered for a program, she/he must file an Affidavit Confirming Registration at Parent Education Program with the court; and (2) parties have to file their Certificate of Attendance with the Court no later than thirty days after finishing the program.

Similar to before, parties do have the option to petition the court for a waiver so that they do not have to attend a parent education program. This is done by filing a Motion to Waive Attendance at a Parent Education Program. The party must include the reason(s) why they cannot attend a program. The Order states that the court will grant the waiver “upon a demonstrable showing of: chronic and severe violence which negates safe parental communication; language barriers; institutionalization or other unavailability of a party; or where justice otherwise indicates.” The last bit of language does appear to allow for a party to include a reason not specifically listed, such as the party serving in the military or the fact that the child of the parties’ is close to being eighteen years of age.

If the Court decides to deny the Motion to Waive Attendance, it can permit a party to watch a five-hour DVD or online program. The cost to each party for the DVD option is also $80. The multimedia alternative is interactive and will provide the participant with a Certificate at the completion of the viewing. A party who is unable to attend in person a Parent Education Program can file a Motion to Permit Completion of Parent Education Program via DVD. As with the Motion to Waive Attendance, the party must include the reason(s) why they cannot attend and must make a demonstrable showing of such reason. The Order specifically lists the following reasons that can be included in the waiver, “significant health or financial issues, significant geographic and transportation issues, or other significant barriers to in person participation; or where justice otherwise indicates.”

The Order also provides some guidance as to what can and cannot be done procedurally with regard to the scheduling of certain court dates. An uncontested divorce hearing under Chapter 208, section 1A can be scheduled if both parties file separate affidavits that confirm that they have registered in a program and if both parties actually will have completed the program prior to the hearing date. The same holds true for a Pre-Trial Conference – the parenting course must be completed and certificates of completion provided at or before the Pre-Trial Conference. As before, the Court will not hold a Trial until the Court receives the Certificates of Attendance from each party. It appears that former practice by some judges – to permit parties to complete the course after a trial, but not issue judgments until the course is completed is not longer a possibility.

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Reforming (alimony) reform – A Chance to Reconsider Applying Effective Dates Retroactively in the event of Retirement and Cohabitation

May 10, 2016 by  
Filed under Matthew Solomon

by Matthew Solomon, Esq.

In 2011, the Massachusetts legislature passed the Alimony Reform Act (“ARA”). The ARA brought about a number of standards to the then existing alimony system in Massachusetts, which had been decided case-by-case by lower court judges. Because there was a lack of standards, the cases could not be relied upon by attorneys as precedent and divorcing couples often found the courts’ decisions to be inequitable or excessive.

Among other things, the legislature revised the ways which alimony can be terminated by inserting a durational limit formula and by including attaining full retirement age for social security, cohabitation for a period of three months. . The inclusion of retirement and cohabitation language in the ARA was extremely significant in that it provided clear standards that would be applied by courts to alimony obligations, and thus allowed divorcing couples a chance to come to terms short of litigation. The hope was that the ARA could help remedy some of the confusion and issues involved with these types of alimony orders.

The ARA, as with any law, is subject to the interpretation of the courts. In other words, the language of the ARA means very little until it is actually applied to a real case with real-life facts, and a court issues a ruling applying the new law based on the facts of the case.

In January 2015, the Supreme Judicial Court (SJC) issued three decisions that laid out a consistent interpretation of the ARA that surprised and confused lawyers, mediators, and even the authors of the ARA itself. In the three cases Doktor v Doktor, Chin v Merriot, Rodman v Rodman, the SJC stated unequivocally that the retirement provision of the ARA was only to be applied to cases where the judgment from the court occurred after the date that the ARA went into effect (March 12, 2012). It its ruling, the SJC relied heavily on the effective date sections of the ARA, which seem fairly clear about what cases are subject to the new act. About three months after the SJC decisions, the Appeals Court weighed in with its own opinion of the forward-looking nature of the ARA when it noted in a footnote in an unpublished opinion that the durational limits were the only exception to prospective application of the ARA (See, Cole v Cole, No. 14-P-466). See House Bill 3617 ARA, section 49 and 4(b), which provides that a pre-existing alimony order that exceeds the durational limits of Chapter 208, section 49 shall be deemed a material change of circumstance that warrants modification of the duration (not the amount) of a preexisting alimony judgment.

The overall reaction from the legal community to the three SJC rulings was generally one of disbelief and frustration. The feeling was it was patently imbalanced and inequitable that a person whose judgment of divorce was finalized one day before the passing of the ARA would not be eligible for the same alimony and modifications as a person whose divorce judgment was finalized one day later. There was also opposition to the SJC’s reading of the intent of the ARA. Several people noted that the SJC’s decisions contradicted the objective of the ARA and what the ARA was drafted to achieve. As a practical matter for attorneys, the three SJC rulings directly impacted the likelihood of success of pending alimony modification cases and the manner in which advice was given the clients with potential alimony modification suits. In fact, some attorneys have put alimony cases in limbo, waiting to see if there is any change in the law or even a ruling from a court that over-turns or modifies the SJC decisions.

Just recently there has been some significant movement with regard to challenging the SJC’s interpretation of the ARA. On February 19, 2016, House Bill No. 4034i* was filed to, in the words of Steve Hitner of the Alimony Task Reform, “fix the misinterpretation of the Alimony Reform Act of 2011 by the SJC.” (See massalimonyreform.org). The Bill is specifically designed to clarify the intention of the ARA with regard to retirement and cohabitation so that any case that brought on these issues will be modifiable regardless of the date of the divorce judgment. Stay tuned for more updates.

*As of the writing of this article Bill No. 4034 was amended by House Bill No. 4110, dated March 21, 2016. On April 19, 2016 the House ordered a third reading of the Bill. On May 10, 2016 the Bill was sent to be placed on the House Calendar.

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MOLST: Honoring Patient’s Life-Sustaining Treatment Preferences

February 22, 2016 by  
Filed under Matthew Solomon

by Matthew Solomon, Esq.

In 2012, Massachusetts introduced a new medical form called the Medical Order for Life Saving Treatment (MOLST) form. The driving force behind MOLST, and the broader National Physicians Order for Life Sustaining Treatment (POLST), came from a need for end-of-life planning based on conversations between patients, their loved ones, and medical providers.

The concept was to improve the quality of patient care and reduce medical errors by creating a system that identifies seriously ill patients’ wishes regarding medical treatment, and communicates and respects these wishes through portable medical orders. See National POLST website, http://www.polst.org

The MOLST form stays with the patient, so the form would be available at the location of the patient if he or she is picked up by emergency medical transportation or receive emergency care in his home or elsewhere, if the form is on his or her person.

In, Massachusetts, MOLST consists of a standardized process and form. The stated goals of the MA MOLST Program are to:

(1) Encourage discussions between clinicians and their patients nearing the end of life about treatment options and patients’ preferences for care; and

(2) Provide clinicians and their patients with a mechanism for translating patients’ preferences into portable signed medical orders (the MOLST form) which travel with the patient and can be honored across health care settings.

An important aspect of MOLST is that enables doctors, nurse practitioners and/or physician assistants to collaborate with the patient, the patient’s health care agent and (to the extent permitted by law), the patients’ guardian, to complete the MOLST form. The MOLST form, once completed and signed by the patient, is an actionable medical order.

The MOLST form consists of two pages, which are designed to be valid independently. Both pages require signatures from both the patient (or the patients’ Health Care Agent/Guardian/Parent or Guardian of a minor) and the Physician, Nurse Practitioner, or Physician Assistant for it be valid. Each page pertains to medical orders for specific medical treatments:

(1) Page 1 contains three treatment options:

(i) Cardiopulmonary Resuscitation: in the case of cardiac or pulmonary arrest (either “Do Not Resuscitate” or “Attempt Resuscitation”;

(ii) Ventilation: for a patient in respiratory distress (either “Do Not Intubate and Ventilate” or “Intubate and Ventilate” and either “Do Not Use Non-Invasive Ventilation (e.g. CPAP) or “Use Non-Invasive Ventilation (e.g. CPAP)), and

(iii) Transfer to Hospital: (either “Do Not Transfer to Hospital (unless needed for comfort) or “Transfer to Hospital”).

(2) Page 2 identifies five additional medically-indicated treatments that may be offered in a clinical setting and also documents whether the treatment has either been discussed or that the patient is undecided:

(i) Intubation and Ventilation: refers back to Page 1 and includes an option to choose short term;

(ii) Non-Invasive Ventilation: Includes the same options as for Intubation and Ventilation;

(iii) Dialysis: choices include “No Dialysis”, “Use dialysis”, and “Use dialysis, but short term only”;

(iv) Artificial Nutrition: Same options as for Dialysis; and

(v) Artificial Hydration: Same options as for Dialysis.

Page 2 is designed to assist further discussion between if and when new clinicians become involved in the patients’ care.

It should be noted the MOLST form is very different than a Health Care Proxy. The two most important distinctions between the two documents are that (1) the Health Care Proxy is a legal document while the MOLST form is a medical document, and (2) the Health Care Proxy becomes effective only if the person is declared to lack the capacity to make his/her own medical decision while the MOLST form goes into effect immediately upon signing. Thus, it is still recommended that people have both forms executed in order to hopefully cover every situation or setting.

Several important questions remain with regard to MOLST forms:

1. Will the form be honored in other states?
According to molst-ma.org, the MOLST form may or may not be honored in other states. Thus, there is no certainty that the form will be honored outside of Massachusetts, so it shouldn’t be solely relied on as a definitive and fool-proof medical order.

2. What happens if a person has a Comfort Care/Do Not Resuscitate Form (“CC/DNR”) as well as a MOLST form?
The Massachusetts CC/DNR form continues to be valid. The CC/DNR form can still be used to show that a valid DNR order exists, and should be honored by EMTs. MOLST forms can also be used in place of a CC/DNR form. If a patient has both forms, the most recent of the two orders should be honored.

3. Can a spouse or relative sign the MOLST form if the patient has lost capacity?
The only person that can sign the MOLST form for a patient who is over the age of 18 and has lost capacity is the patient’s designated health care agent.

4. Will EMTs or Emergency Room medical personnel really abide by them and let someone die?
That’s the big question that remains unanswered. EMTs do have the obligation to honor MOLST forms. The Massachusetts Department of Public Health’s Office of Emergency Medical Services (“OEMS”) has jurisdiction over emergency medical services and instructs that MOLST forms must be honored by EMS personnel. EMS personnel are told to call Medical Control (which acts as a link between EMS providers and physicians) if they are in the field and have a question about a MOLST form or the form’s instructions. EMS personnel are also instructed that a patient may, at any time, ask for treatment that has been previously refused on the MOLST form.

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Are Self-Modifying Alimony Provisions Enforceable?

June 29, 2015 by  
Filed under Alimony, Divorce, Matthew Solomon

by Matthew Solomon, Esq.

A recent Massachusetts Appeals Court case, Hassey v Hassey, 85 Mass. App. Ct. 518 (2014) addressed whether a provision in an order providing for adjustments in alimony was effective. The Appeals Court found the one in the trial judge’s order in Hassey to be unenforceable.

Husband and wife were married for eleven years. Upon divorce, the probate judge ordered husband to pay monthly alimony and an “additional alimony equal to thirty percent of his gross income in excess of $250,000.00, from all sources…payable quarterly.” The husband was ordered to provide quarterly documentation of his income to the wife. Alimony was to continue until the first of four events: wife’s remarriage or cohabitation; wife’s death; husband’s death; or husband’s retirement as defined by the Alimony Reform Act.

The Appeals Court first looked at the amount of alimony ordered. (Note that this was not a consensual separation agreement entered into by the parties.)

In this case, the probate court failed to include in the findings of fact a consideration of the parties’ ability to maintain the marital lifestyle. This omission by the probate court gave the Appeals Court the opportunity to review the amount of the alimony award. The alimony order of the probate court was approximately forty-one percent of the difference in incomes, which exceeded the thirty to thirty-five percent range set forth in M.G.L. c. 208 §53(b). The Appeals Court stated that although such a deviation is “reasonable and lawful” under §53(b), the probate court made no “finding as to the amount of alimony the wife needed in order to maintain the lifestyle she enjoyed during the marriage.” Thus, the probate court’s ruling on general support alimony was vacated.

Next, the Appeals Court reviewed the “self-modifying” portion of the alimony order. The Appeals Court detailed two major issues with this part of the order. First, the “self-modifying” order was “not based on a judicial determination, supported by subsidiary findings of fact, of an increase in the wife’s need accompanied by the husband’s ability to provide for the same.” The Appeals Court focused on the fact that the way the modification was ordered, the burden to show a change in circumstances was improperly shifted to the husband. The wife had no “corresponding burden and will automatically realize the benefit of any increase to the husband’s income.” Second, the Appeals Court found the ‘self-modifying” order was “inequitable because it requires only the husband to disclose quarterly income to the wife, but imposes no reciprocal duty on the wife.” The husband would not be privy to information regarding the wife’s income and whether a material change had occurred in her needs.

A couple takeaways on this case: (1) drafting of “self-modifying” clauses should be done extremely carefully with as much explanatory language as possible; and (2) consider agreements to deviate from 53(b) alimony amounts. Another takeaway is that if a litigated case, careful reading of the findings of fact should be done to make sure that the lower court has addressed all the statutory factors in determining the initial alimony order.

 

©2015 Matthew Solomon.  All rights reserved.

 

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How to Obtain Court Orders in Divorce or Post–Divorce cases without Hearings     

May 26, 2015 by  
Filed under Divorce, Matthew Solomon

by Matthew Solomon, Esq.

Rule 412 (actually Supplemental Probate and Family Court Rule 412) permits parties to divorce or post-divorce actions to make certain changes in orders and judgments by administrative action by a judge instead of having to go to court for a hearing. However, many papers must be filed –and filed correctly in order for the court to act administratively.   If any of these are missing or questioned, the parties (and their attorneys) will need to come into court for a hearing. If the parties’ agreement and accompanying packet of forms is complete (and if the judge has no questions), the parties can expect to receive an order from the court within thirty days of filing.

It should be noted that the process, though not as stressful and time-consuming as a day in court, does require the parties to submit more than just a joint agreement to the court. Here are some of the forms that are needed:

  • An agreement (generally notarized) which must state many particulars as specifically required by Rule 412.
  • Accurate and complete court-form Rule 401 Financial Statements with supporting documentation.
  • A complete and accurate Child Support Guidelines Worksheet, if child support or medical, dental r vision insurance is being modified;
  • A proposed Child Support Findings form if the parties are deviating from the child support guidelines calculation

The parties will be notified of a hearing date if the court believes a hearing is necessary or helpful to resolve the matter.

Despite the clear intent behind Rule 412 to make things cheaper and easier for parties, it still is recommended that you consult with an attorney prior to filing. An attorney can help assess the complexity of the issue you are attempting to modify and attorneys have more familiarity with probate forms and how they need to be filled out.

 

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Marvin Gaye, “Here, My Dear”, and a Creative Divorce Settlement (Part 1)

April 24, 2015 by  
Filed under Divorce, Featured, Matthew Solomon

by Matthew Solomon, Esq.

If you’re a fan of good music and you’ve never heard Marvin Gaye’s 1978 record, “Here, My Dear”, then I strongly suggest that you take a listen. If you’re a fan of good music and also someone going through a divorce, or thinking about divorcing, then listening to this album is a must. This is a record crafted and created straight from the pain, anger, narcissism, embarrassment, and resentment that many family lawyers see in their clients.

Marvin Gaye married Anna Gordy in 1962. Anna was seventeen years older than Marvin, who was twenty-two at the time they married. At this point in his musical career, Marvin was very young and inexperienced and had only one studio album under his belt. After fourteen years of marriage, Anna filed for divorce. The couple had already been living apart for two years and both were accusing the other of infidelity. As the divorce proceedings dragged on, Marvin’s personal assets dwindled and he was in arrears for back taxes as well as temporary alimony payments.

According to Curtis Shaw (Marvin’s lawyer at the time), the house that Marvin was living in with another woman and his kids was about to be padlocked due to his financial troubles. Attorney Shaw came up with a unique and creative idea on how the couple could reach an agreement with regard to the financial aspect of their divorce. This is what he said:

“There weren’t many joint-estate assets because during the Marvin/Anna years they lived high on the hog…Meanwhile, Anna was demanding a million dollars. How was this ever going to get resolved? I came up with a plan. Marvin was getting $305,000.00 advance per album at this point, and I suggested that he pay the next album’s advance to Anna, plus the first $295,000 of earnings. That meant she’d have $600,000. Anna went for the idea. I got Marvin to go along, and the judge wrote up the order.”

From this solution, Marvin Gaye’s album “Here, My Dear” was born.

Part 2 will delve deeper into the individual tracks of the album and examine how Marvin’s lyrics imitated the language he heard from the judge and the lawyers.

 

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Can An Alimony Obligation be Modified under terms of The Massachusetts Alimony Reform Act of 2011?

April 7, 2015 by  
Filed under Divorce, Featured, Matthew Solomon

by Matthew Solomon, Esq.

Matthew Solomon smallWhen the Massachusetts legislature enacted the Alimony Reform Act of 2011 (the “Act”), attorneys and previously divorced individuals were left with uncertainty as to how this law would affect prior alimony agreements and judgments.  (For simplicity here, I’ll refer to both as “judgments”)

Just recently, in three separate cases (in each, a ex-spouse seeking retroactive application of the Act to end spousal support), the Supreme Judicial Court held that terms of the Act does not  apply retroactively to alimony judgments entered before the effective date of the Act — March 1, 2012. These three cases involved separation agreements that were incorporated into the judgment of divorce and were merged into it, which means the provisions of the agreement regarding alimony were potentially changeable by their terms under the jurisdiction of the Family and Probate Court.

In all of these cases the person paying alimony sought to terminate his alimony payment obligations based on the Act’s language that alimony “shall terminate upon the payor attaining the full retirement age.” G.L. c. 208, §49(f).   In one of the cases, the ex-husband also sought to terminate his alimony obligation based on the Act’s language that alimony, “shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse…” G.L. c. 208, §49(d). The SJC delivered a consistent and unambiguous conclusion in all three cases: the retirement and cohabitation provisions of the Act do not apply to divorces that were final before the effective date of the Act, even if the alimony provision was merged into the judgment

In Chin v Merriot SJC-11715 (Jan. 30, 2015), the ex-husband had already reached the age of retirement when his divorced was finalized 2011.   In addition to claiming termination due to his retirement, he raised the cohabitation provision under M.G.L. ch. 208, section 49(d) as a reason for termination of alimony.  The SJC held that both provisions were prospective only.  Since in his case, the alimony provision was merged into the judgment of divorce, the ex-husband could have shown a material change of circumstance warranting modification or termination of his alimony obligation, but did not meet that burden of proof.   This option under the pre-Act law of modification is still available for ex-spouses with merged alimony judgments, because the issue of alimony remains under the continuing jurisdiction of the Probate and Family Court.

In Doktor v Doktor, SJC-11727 (Jan. 30, 2015), the ex-husband reached retirement age after the 1992 divorce.  The alimony provision merged into the judgment.  The SCJ held that presumptive termination of alimony at full retirement age in the Alimony Reform Act is prospective and does not apply to cases that were concluded before the law went into effect.  In this case, the ex-husband did not establish that there had been a material change in circumstances that should warrant modification of the alimony provision.  The court also said that permissible changes in pre-Act merged judgments due to difference in “durational limits” between a divorce judgment and the Act within the meaning of M.G.L. ch. 208, section 4(b) does not include an event such as remarriage, cohabitation, or reaching the age of retirement.

In Rodman v Rodman, SJC-11726 (Jan. 30, 2015), the alimony provision in the 2008 divorce also was in a separation agreement that merged into the judgment. The ex-husband argued (unsuccessfully) that that in such a case the Act applies, because a merged judgment is “prospective” in effect.  The Court held that the section 49(f) provision presumptively ending alimony at retirement age for social security is not applicable, and does not apply retroactively to both merged and surviving pre-Act separation agreements. The Court further explained that the only subset of divorce cases that went to judgment before the act went into effect that are modifiable pursuant to the terms of the Alimony Reform Act are those where the alimony order (1) merged into the underlying judgment, and (2) exceed the durational limits for support provided under the act.

The decisions in these three cases had been highly anticipated by family law lawyers. At this point, it seems that any party to a divorce that was final prior to March 1, 2012 seeking to terminate alimony payments under the new retirement and cohabitation provisions of the Alimony Reform Act should be advised that their chances of success are slim to none. However, a payor who believes there has been a material change in circumstances may still apply to the Court in the form of a modification action for a reduction or elimination of alimony payments, if the alimony provision has merged into the judgment, subject to the Family and Probate Court’s continuing jurisdiction.

By speaking so decidedly and unequivocally, the SJC has provided attorneys with a precise framework within which they can advise clients seeking to modify or terminate their alimony payments on the basis of retirement or co-habitation, and also to contest duration of alimony for pre-Act divorces where the alimony judgment merged.

Note that under Section 4 (c) of the Act, as in pre-Act law, no litigant may seek modification of an existing alimony judgment in which the parties have agreed is not modifiable, and which “survive” the judgment.  This puts divorced individuals who bargained and negotiated prior to new alimony provisions contacted within the Act in a permanently unfavorable position, compared with individuals who had negotiated merged pre-Act judgments, and those in post-Act divorces.

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Town’s Policy for Student Residency Put to the Test

December 22, 2014 by  
Filed under Featured, Matthew Solomon

By Matthew Solomon, Esq.

Matthew Solomon smallAccording to a Massachusetts Superior Court judge, a town cannot refuse to enroll the son of a divorced resident in its public schools solely on the grounds that on most school nights the child slept at his mother’s home in another community. The Town of Wayland wanted to rely strictly on the number of nights that the child actually slept in town as the determinative factor in deciding whether the child was a resident. As a result of his parents’ shared custody agreement, the child spent 7 out of 10 nights with his mother in Framingham. The Town has its own guideline for residency (written after the case was filed), which requires that a child spend at least 3 out of 5 school nights  (Sunday through Thursday) in Wayland. In this case, the parents of the child sought to have their 8th grade son return to the Wayland school system after placing him in a private school in the 4th grade to address his dyslexia.

The law in Massachusetts guarantees every person with the right to attend the public schools of the town “where he actually resides.”  The judge in this case found that Wayland’s residency policy, often called a “pillow-count” rule, did not account for several other factors that help determine whether the child was “actually residing” in Wayland. The judge stated that residency should also be determined by looking at the child’s domestic, social, and civic life.  In addition, the judge pointed out that the Town of Wayland’s residency policy also did not seem to account for families comprised of foster parents, guardianships, split families, children living with relatives, and with children who are institutionalized.

In looking at these factors, the judge found that since the child previously attended Wayland schools through the 4th grade, there was a good possibility that he would be able to re-establish old relationships and that this was important considering that he would be entering high school the following year.  The fact that the child actually resided with his father in Wayland was also given weight. Finally, there was evidence that Wayland was the focal point of the child’s social and civic life. By focusing on these factors, the judge was clearly expanding the inquiry that public school systems need to carry out when making residency determinations.

Another aspect of this case that should not be overlooked is that the child involved was eligible for special education services. Despite the Town’s insistence, the judge in this case did not require the parents to obtain a residency ruling from the Massachusetts Bureau of Special Education Appeals, a process that can take a long time and that could have caused the child to be enrolled after the school year had started. The judge also warned the Town that its desire to require an additional proof of residency obstacle solely for parents of children who are eligible for special education was on its face discriminatory.

When determining residency for public schools in Massachusetts in a joint parenting situation, review Ames v. Town of Wayland.  Also obtain a copy of the town’s “Residency Guidelines” for enrolling a student in the public schools.

Ames v. Town of Wayland, Mass. Super. Ct. No. 14-6767 (2014).

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