All posts by AlisonSilberEsq

Young v. Young and Marital Lifestyle

In the Young v. Young case, the Massachusetts Supreme Judicial Court considered how to frame the need for alimony.  Is it the need to maintain the standard of living the recipient spouse had at the time of the separation leading to the divorce?  Or is it the amount required to enable the standard of living the recipient spouse would have had in the future if the couple had not divorced?  In this case, the SJC held that the answer is the need for support to maintain a life consistent with the marital lifestyle, not a future lifestyle. 

In this high net worth case, the Wife was a stay-at-home mom, by the parties’ agreement, who the judge found had no ability to secure employment that would allow her to maintain a lifestyle post-divorce similar to her marital lifestyle without alimony.  The SJC discussed how, given the Husband’s substantial ability to pay, the analysis rested on the Wife’s need: “that is, the amount necessary to allow her to maintain the lifestyle she enjoyed prior to the termination of the marriage.” Since the Husband’s income increased over the marriage, and the parties’ lifestyle grew more expensive along with it, the Wife’s need should be considered as the lifestyle she had grown accustomed to before the marriage ended.  The SJC concluded that, “Even if the parties enjoyed an upwardly mobile lifestyle for the duration of their marriage, nothing in the language of the statute or our case law suggests that the recipient spouse is entitled, by way of alimony, to enjoy a lifestyle beyond what he or she experienced during the marriage.”

It is worth also noting that the Probate and Family Court judge had ordered the Husband to pay alimony in the amount of 33% of his gross annual income.  The SJC discussed the special circumstances in which a proportionate or contingency award might be appropriate, and held that those types of circumstances were not present here.  The SJC remanded the matter so the Probate and Family Court judge could reevaluate alimony as a consistent amount, rather than a percentage.

Sbrogna v. Sbrogna: Multiple Complaints and the Length of the Marriage

As discussed on this blog previously, the Alimony Reform Act provides a formula for calculating general term alimony, which uses the length of marriage as a variable in the formula. The length of marriage is defined as the date of marriage to the date of service of a complaint. But how do you calculate the length of marriage in a matter where multiple complaints were filed? It is not uncommon in family cases to see multiple complaints. For example, there might be a complaint for divorce filed, then withdrawn, filed again several years later but never served, and then later a counterclaim for divorce is filed and served.

In the recent case of Sbrogna v. Sbrogna, the Appeals Court addressed a fact set where the 1B petition was filed and then went inactive. One year later, the parties filed a Motion to Amend with a 1A Petition, and the divorce proceeded under the 1A Petition. The Court held that, for purposes of defining the length of the marriage, the relevant pleading is the one that results in a valid judgment of divorce. The court reasons that otherwise alimony could be based on the first date of filing even if the parties reconciled for a period afterwards. This holding clarifies the calculation of length of marriage.

Family Law Considerations Under the Trump Tax Plan

If you are divorced, divorcing, or otherwise involved in family court, Trump’s new tax plan may impact you. The two biggest changes involve alimony and personal exemptions.

Previously, alimony was tax deductible to the alimony payor and taxable as income to the alimony recipient. This allowed for many creative settlements where the parties could keep money in the family rather than giving it to the government. An alimony payor, who was almost always in a different tax bracket than the recipient, could lower his or her tax obligation by paying alimony to the recipient, who had to pay taxes on the alimony but at a much lower tax rate.

For divorces effective or modified after December 31, 2018, the new tax plan removes this tax quality from alimony and instead treats alimony like child support, a transfer of money from one party to another without tax consequences. We anticipate that we will see a rush of divorces expedited so that their alimony provisions are not impacted by the new tax plan. We may also see some modifications after December 31, 2018 by recipients who want their alimony recalculated and not taxable.

It is possible that our legislature will need to contemplate alimony once again. The recent Alimony Reform Act provided a formula for alimony calculations back when alimony was taxable. Now that alimony is no longer taxable, perhaps the formula will be revised.

Personal Exemptions
It used to be that parties would negotiate who could claim the personal exemptions for their children. However, the new tax plan removes the personal exemptions and instead increases the standard deductions. This leaves the child tax credit remaining, which increased per qualifying child and which also requires the child to live with the claiming parent more than 50% of the time.

We now find ourselves with fewer pieces of the pie, so to speak, to negotiate and trade. If alimony is no longer taxable and personal exemptions are no longer available, we have fewer pieces to exchange and negotiate into a satisfying settlement agreement.

The Updated Child Support Guidelines

In Massachusetts, our Child Support Guidelines have been updated and will go into effect on September 15, 2017. Here are some of the top changes:

Minimum Child Support Amount: The 2017 Guidelines increase the minimum weekly child support payment from $18.46/week to $25/week.

Parenting Time: Previously, there were three ways to calculate child support, depending on whether parent had the child 1) less than a third of the time, 2) more than a third but less than half the time, or 3) half the time. The 2017 Guidelines remove the second category.

Childcare Costs: The 2017 Guidelines make an adjustment such that parents share the cost of reasonable childcare proportionately. Additionally, the combined adjustment for childcare and health care costs is capped at 15% of the child support order.

Children Ages 18-23: The prior Guidelines provided that the formula was not presumptive for children between 18-23, and the 2017 Guidelines go a step further by clarifying how the child support for those ages should be calculated.

College Costs: Unless the parties agree otherwise or the Court enters written findings that a parent has the capacity to pay more, the Court shall not order a party to pay an amount in excess of 50% of the undergraduate, in-state resident costs of the University of Massachusetts-Amherst.

Deviations: The 2017 Guidelines suggest that deviations may be more generally tolerated than before. Previously, some courtrooms were less inclined to accept a deviation from the child support worksheet, but the updated wording provides more room for accepting deviations.

Overtime and Secondary Jobs: The 2017 Guidelines continue to suggest that overtime and secondary job income should be presumptively excluded from the calculation of gross income, and this presumption applies for both the payor and the recipient. The Guidelines now state: “The Court may consider none, some, or all overtime income even if overtime was earned prior to the entry of the order.”

What to Know about Snow v. Snow

In this case, the Wife did not seek alimony until four years after the parties’ divorce. This presented the question—does the durational term of alimony begin from the date of divorce, the date of the temporary alimony award, or the date of the general term alimony award?

The court found that the durational term begins from the date of the general term alimony award, even if that isn’t until four years after the date of divorce. If the alimony recipient did not seek alimony at the time of divorce, then it should not start to run from the date of divorce. And, a prior case, Holmes v. Holmes, already established that the general term alimony duration does not begin at the award of temporary alimony.

Snow v. Snow also clarifies that overtime should be considered when setting an initial award of alimony, but generally not for a modification of alimony. Furthermore, when the court is issuing an initial award of alimony, the court should make a determination regarding the recipient’s health insurance.

Surrogacy Agreements with a Family or Friend Surrogate

When a friend or relative agrees to be your surrogate during your family-building process, they are giving you one of the most amazing gifts. You want to make sure that your Surrogacy Agreement covers all of your intentions fully. Here are some, but not all, of the basics your Agreement should include:

– The preamble of your agreement should include sufficient context, identifying all the parties, explaining the relationships with one another, explaining why the parties are entering into this agreement, and providing any other pertinent context.

– The agreement should identify the surrogate’s spouse, if any, and memorialize the spouse’s consent to the arrangement.

– The agreement should state the number of embryos to be transferred at a time and define the period and number of attempts.

– The agreement should cover the rights of all the parties during pregnancy (such as intended parents attending OB visits) and after birth (such as whether surrogate will have any type of relationship with the child).

– The agreement should name the medical care providers, whose health insurance will be used, and where the child shall be delivered.

– The agreement should discuss ethical issues and decision-making around terminating a pregnancy.

– The agreement should discuss finances, such as who will pay for maternity clothing, potential lost wages to the surrogate, uninsured medical expenses, etc.

As discussed previously on this blog, the law around assisted reproductive technology is evolving, so you should work with an attorney to make sure your Agreement is as enforceable and strong as possible.

SJC: Same-Sex, Never-Married, Non-Biological Parents May Assert Parentage Over Children of the Relationship

Today, the Supreme Judicial Court issued a pioneering opinion about never-married, same-sex families. In Partanen v. Gallagher, two women (“bio mom” and “non-bio mom”) had been together since 2001 although they never married. In 2002, they moved to Florida and bought a home together, and in 2005 they began trying to have a family. Non-bio mom originally tried to conceive through artificial insemination with a sperm donor but was unsuccessful. Ultimately, bio mom tried instead, and conceived two children through artificial insemination with a sperm donor. Non-bio mom was present in the delivery room for the birth of both children, and the parties raised the children together. They moved back to Massachusetts together as a family in 2012.

When the parties separated in 2013, non-bio mom tried to state her claim of parentage over the two children from the relationship whom she helped raise since birth.

The SJC first found that a person may establish herself or himself as a child’s presumptive parent under G. L. c. 209C, §6(a)(4) in the absence of a biological relationship with the child. Then the SJC proffered a two-prong test for stating a claim of parentage: 1) were the children born to both parties? and 2) did the parties receive the children into their home and openly hold out the children as their children?

Here, two key facts sufficiently prove the first prong that the children were born to both parties: the pregnancies were undertaken “with the full acknowledgment, participation, and consent of both parties” and the shared intention for both parties to be parents to the resulting children; and non-bio mom was present in the delivery room when both children were born. As for the second prong, the court finds it sufficient that non-bio mom “participated actively in the care and nurturing of the children form the moment of their birth, that she was involved in key decisions, that [both parties] represented themselves to others—both in form and informal contexts—as the children’s parents, and that the children refer to her as ‘Mommy.’”

Massachusetts continues to lead the way as one of the friendliest states to same-sex families.

What Is a Sperm Donor Agreement?

If you are trying to get pregnant using a known sperm donor, you should obtain a Sperm Donor Agreement, which will memorialize all your intentions so that future fights between you and your sperm donor are preempted.  You and your sperm donor can negotiate any arrangement that works for you. You can get creative and negotiate arrangements tailored exactly to your lives, such as an agreement that the sperm donor will be allowed to attend your child’s high school graduation or an agreement that the sperm donor will receive an annual email update about the child every Christmas.

At a minimum, here are some of the things that your Sperm Donor Agreement will cover:

  • Whether donor’s parental interests, rights, and responsibilities terminate at time of donation
  • What medical and genetic information is disclosed by sperm donor to you and whether sperm donor will take an STD test, at your expense
  • Whether sperm donor will avoid high risk sexual activity during the period of donation
  • Your right to make all medical decision-making related to both the pregnancy and the child
  • Whether you will inform donor if/when you get pregnant, if/when any pregnancies ended in miscarriage/stillbirth/abortion, and if/when a child is born
  • A provision that you will accept any resulting children, notwithstanding congenital or other abnormalities
  • Whether you or the donor is requesting confidentiality, and whether you will share donor’s identity with the child
  • Whether the donor’s sperm may be cryopreserved to be used for your future attempts at pregnancy
  • Whether the donor will inform you of any other future donations or children
  • And much more.

While there are many benefits and reassurances to using a known sperm donor, problems can arise too.  It is best to preempt conflict and fighting by executing a thorough Sperm Donor Agreement with your known donor.




Why Married Lesbian Parents Still Need a Co-Parent Adoption

In Massachusetts, we are lucky to live in the first state to allow same-sex marriage. As a result, some of our practices have caught up with same-sex marriage. For example, when one woman in a married lesbian couple has a biological child, both women’s names are put on the birth certificate. However, the laws are not completely caught up to where they should be. For instance, the statute provides that, when a woman uses a sperm donor with the consent of her husband, her husband is considered the legal parent of the child. That statute is silent as to when lesbian couples use a sperm donor, which they must do in order to get pregnant. The practice of placing both women on the birth certificate exists but the statute does not explicitly support it.

Many family lawyers, as well as the National Center for Lesbian Rights, strongly suggest that all married lesbian couples should have a co-parent adoption for the non-biological mom, even if the non-biological mom is listed on the birth certificate. A co-parent adoption is the legal procedure by which the non-biological mom adopts biological mom’s child without terminating biological mom’s parental rights.

There are a number of conceivable situations where a married lesbian couple could have difficulty if the non-biological mom does not pursue a co-parent adoption:

  • Imagine a large family asset that should pass to non-biological mom and her heirs. Other extended family members might argue that the child should not inherit from this family asset because non-biological mom never adopted the child.
  • Imagine a scenario where non-biological mom is traveling with child and child has a medical emergency. The medical providers might refuse to allow non-biological mom to make urgent medical decisions for the child because she did not adopt the child.
  • Imagine that biological mom and non-biological mom divorce eight years after the child was born. Biological mom argues that non-biological mom should not have the same rights since non-biological mom never adopted the child. In Massachusetts, that argument should not get far, but it could have traction in another jurisdiction that is slow to catch up on same-sex marriage rights.

Accordingly, it is legally advisable and strongly encouraged that non-biological, LGBT parents pursue a co-parent adoption to ensure their parental rights are fully protected in every state.

Where to Pursue Your Restraining Order: District Court vs. Probate Court

In Massachusetts, parties can pursue a restraining order in several courts, and you should consult with an attorney to strategize about court selection.

If you file in district court, it’s possible the process may be efficient, but the district court has limited authority over custody matters. The district court does have the power to order child support, but the district court judges calculate child support far less often than the probate court judges. Furthermore, it can be confusing to have a district court judge adjudicate only part of your divorce—the restraining order and potentially child support—while a probate court judge is adjudicating the rest.

If you file in probate court, it is likely that the Probate Court who handles your restraining order will handle the rest of your matter. Generally speaking, a judge who handles both the restraining order and the divorce will have a fuller understanding of your matter and be able to make more informed rulings. It often makes sense to proceed with your restraining order petition in the probate court.

It is important to consult with an attorney about court selection and make sure you are proceeding with the court that makes the most sense for your case.