Who Gets the Dog in the Divorce?

We often think of our pets as members of the family, and this is no different in a divorce. Unfortunately, the law hasn’t caught up with the sentiment, and pets are treated as nothing more than property to be divided in a divorce. While this may not seem fair, it is the unfortunate reality that the courts simply cannot referee “custody” disputes over the pets. Massachusetts is an equitable division state, so the Court will look at what a fair property division – including the dog – would be. The Court may consider the following factors in determining who should get a pet in a divorce:

1. Was the pet a gift to one spouse?
2. Does the pet have pedigree papers, and if so, whose name is on them?
3. Is one party a primary caretaker of the pet?
4. Does one party have more suitable living arrangements for a pet?
5. Did one party own the pet prior to marriage?
6. Is there any evidence either party ever mistreated the pet?
7. Which party was primarily financially responsible for the pet?

The Court will enforce a determination of who gets the pet(s) in a divorce, but it will not enforce any sort of “shared custody” or “parenting plan.” This is not to say that an amicable divorce agreement may not include sharing time with a beloved pet; however, if one party fails to abide by the terms of the agreement, it is unlikely that the court will intervene.

THIS BLOG WAS WRITTEN BY ATTORNEY CATHERINE TAYLOR AND IS FOR INFORMATIONAL PURPOSES ONLY. NOTHING CONTAINED HEREIN SHALL BE CONSTRUED AS LEGAL ADVICE OR CREATING AN ATTORNEY-CLIENT RELATIONSHIP.

#Massachusetts #Divorce #FamilyLaw #Pets

Courthouse Fashion… Dress for Success

A clerk magistrate once asked me, “Counselor, how do you always have your clients dress so nice?”  I laughed and smiled at the question, acknowledging the overall appearance of litigants inside the courthouse on that day.

It may seem like common sense to dress appropriately for a court appearance, but many individuals really need to take a second look in the mirror before setting foot in court.

Some simple tips will have you looking appropriately and feeling comfortable for your trip to court.

1. Wear simple clothing.  Keep in mind you will have to go through the metal detector.  This involves taking off your belt, and occasionally taking off your shoes.  You don’t want to wear knee high lace up boots only to have to take them off and sit on the courthouse floor trying to lace them back up.
2. Wear clothing that fits.  As to number 1, I have seen a gentleman take off his belt to his suit, only to have his suit pants fall around his ankles.  It was embarrassing for everyone waiting in that lobby.
3. If you are a man, wear a shirt that can be tucked.  There is one judge in particular that will not hear your case until 4 p.m. if you approach him with an untucked shirt.
4. I usually suggest business casual, or nicer.  A nice polo shirt and khaki pants, or button up shirt or simple dress can show the court you are taking your appearance seriously.
5. Ladies, stick with flats for shoes.  Many courts do not have a lot of sitting areas in the lobby, and there can be a LOT of waiting.  You will be a lot more comfortable in some cute flats.
6. You don’t need a lot of flashy accessories.  I saw one day a man trying to go through the metal detector with a belt buckle that doubled as a flask.  Unfortunately the court officers made him leave his belt buckle in the car, and he had a hard time keeping his pants all the way up that day.
7. Leave the sequins at home.  While you want to dress up, think grandma’s closet, not Friday night out.  You want to look conservative rather than flashy.  Ditto for stiletto heels and leather  pants.
8. Do not wear shorts and flip flops.  Some court officers will actually make you wait in the lobby until your case is called if you are dressed inappropriately.  Shorts and flip flops fall into the category of inappropriate.

Follow these simple guidelines and you will be dressed to impress at court.

Life Insurance Review

It is not uncommon for individuals to purchase a life insurance policy, and then forget about it.  People tend to assume that once it is initially purchased, nothing else ever has to be done with it.  Well, just as it is important to regularly review the remainder of your estate plan, you should regularly review your life insurance plan(s) to ensure that your named beneficiaries are still appropriate for your current situation.  Your policies should be reviewed every few years, or upon the happening of any major life event (marriage, divorce, birth of a child, death in the family, etc.).

 

It’s been a busy season for the Supreme Court, and with the recent decisions regarding DOMA and Prop 8, other decisions have been overshadowed.  This is not to say they are any less important.  One such decision, Hillman v. Maretta, deals with federally governed life insurance plans.  Federal plans are governed by a specific set of federal rules and regulations.  For example, the Federal Employees Group Life Insurance Act of 1954 (FEGLI), at issue in Hillman, prioritizes payment to named beneficiaries of the policy.  This seems fairly straightforward, but can become quite complicated when a policy holder divorces and remarries, and fails to update the named beneficiary of the policy to their current spouse.  Federal law dictates that the ex-spouse would be entitled to the benefits of the policy.

 

Many states have statutes that revoke the beneficiary designation in any contract that provides a death benefit to an ex-spouse if the policy holder did not change the beneficiary.  The Virginia statute at issue in Hillman also included a provision that provided a cause of action against the ex-spouse to recover any benefits paid to them under such a contract. 

 

In the Hillman case, Warren Hillman owned a FEGLI policy that named his ex-wife, Judy Maretta, as the beneficiary.  Hillman remarried Jacqueline Hillman, but did not update the beneficiary on his policy.  At his death, the proceeds of the policy were paid to Judy Maretta.  Jacqueline Hillman then sued Judy Maretta under the Virginia statute to collect the proceeds of the policy.  

 

The case wound its way through the court system, finally landing on the docket of the U.S. Supreme Court.  The Court held that the action to collect the proceeds was preempted by FEGLI because the Virginia statute implied someone other than the named beneficiary had a right to the plan benefits.  Because the state law was in direct conflict with the federal law, the state law must fail. 

 

Although Hillman applies only to FEGLI and federally authorized plans (i.e. 401(k) plans), the Court’s ruling definitely highlights the need to update ALL components of your estate plan upon the happening of a major life event, not just your will.

When should you update your estate plan?

You met with your attorney and set up your estate plan, and now you never need to worry about it again, right?  Wrong!  There are certain life events that warrant having your estate plan reviewed and updated, if necessary.  

 

1.  Changes in your Family.  

Families are ever evolving, and with those evolutions, there may be modifications that you want to make to your estate plan.  You should absolutely have your estate plan re-done if you get married or divorced.  It is also a good idea to update your estate plan if you have had or adopted a child or grandchild.  If a named beneficiary in your estate plan dies, you will want to update your estate plan, even if you have a contingent beneficiary named.  Finally, if you have children that have attained the age of 18, you may want to modify your estate plan to remove guardianship provisions and update the way your children will inherit (i.e. you may no longer want or need a trust in place).

 

2.  Changes in Assets

If your estate has recently undergone a substantial change in value – either up or down, it is a good idea to at least review your estate plan to ensure it still accomplishes what you need it to.  Changes in value could result from buying or selling real estate, inheritances, starting a business, purchasing life insurance, etc.

 

3.  Change in Location

If you have moved to a different state from where your estate plan was originally created, you should definitely have your estate plan updated.  Each state has its own probate and estate laws whose differences can greatly impact your estate.

 

4.  Changes in Probate, Estate, or Tax Laws

Recently, Massachusetts implemented the Massachusetts Uniform Probate Code (MUPC) which introduced significant changes to probate and estate law.  Although wills and other estate planning documents executed prior to the passing of MUPC are “grandfathered in” and are still valid, a previously executed will may no longer distribute your estate as you intend, and it is best to update your estate plan in accordance with the new laws.  A review should also be done when estate tax laws change to make sure that your estate is properly planned to minimize potential estate taxes.

 

5.  You are Approaching Retirement

If you are approaching retirement and/or have reached the age where you are required to start taking distributions from your you should not only meet with a financial planner, but you should also work with your estate planning attorney to ensure that your estate plan is still set up in a way that will accomplish your goals as far as what you want to leave behind for your heirs, while allowing you to live comfortably during your retirement.

 

6.  A Change in Circumstances of Your Fiduciaries

If any of the individuals you have named in a fiduciary capacity in your estate plan – personal representative, guardian, trustees, etc – have passed away, are no longer competent to serve in a fiduciary capacity, or you no longer wish an individual to fill a fiduciary role, you should update your estate plan to account for this.  Although most estate plans include contingent fiduciaries, it is always recommended to have at least two named individuals who are able to fulfill the fiduciary role named in your documents.  

 

7.  It’s Time for a Check-Up

If it has been 3-5 years since you last had your estate plan reviewed by your attorney, it is a good idea to make an appointment to have your estate plan reviewed.  Your attorney will know if there are any changes in the laws or your circumstances that would warrant a change to your existing estate plan, and be able to advise you accordingly.  

 

If you have any questions or would like to schedule an appointment to have your existing estate plan reviewed, please contact Attorney Catherine Taylor at Broadbent & Taylor for your free initial consultation.  (508) 438-1198 or catherine@kbctlaw.com 

Modification of Existing Child Support Orders

One of the most common questions I am asked by clients is: when will the judge grant a Complaint for Modification regarding child support?  There are several situations in which a modification is appropriate.  According to the 2009 Child Support Guidelines, an existing order for child support may be modified in any of the following situations:

1.  the existing order is at least 3 years old; or

2.  health insurance previously available at a reasonable cost is no longer available; or

3.  health insurance not previously available to a party at a reasonable cost has become available; or

4. any other material change in circumstances has occurred.

HOWEVER, Mass. Gen. Laws ch. 208, s. 28 provides that “orders of maintenance and for support of minor children shall be modified if there is an inconsistency between the amount of the existing order and the amount that would result from the application of the child support guidelines…”

In deciding cases for modification of existing child support orders, judges have adhered to the language of the Guidelines rather than the statute, and granted modifications (not falling into the first 3 categories) only when there had been a material and substantial change in circumstances since the order was entered.  This all changed on March 12 when the Supreme Judicial Court issued its decision in Morales v. Morales (SJC 11104). Writing for the court, Justice Botsford, held that the 2009 Guidelines are not consistent with the standard set out in Section 28, thus eliminating the need for a “material and substantial change in circumstances.”

So what exactly does this mean?  This does not mean that a complaint for modification may be used as a substitute or alternative to the normal appellate process.  Appeal is still the appropriate avenue to challenge the validity of a child support order.  Nor does it mean that a complaint for modification is appropriate when nothing has changed other than the payor’s desire to reduce their support obligation.  The ruling in Morales v. Morales simply enforces that the statutory language in Section 28 – commonly referred to as the inconsistency standard – is what courts need to be applying when deciding modification cases.  Some change in circumstances must occur in order for a modification request to be properly made, otherwise, there would be no inconsistency with the Guidelines.  If either party’s salary has changed, or there has been a change in health/dental insurance, child care costs, or other support obligations, a modification will be appropriate.

If you think you are eligible for a modification of your existing child support order, please contact our office today for a free consultation.

Family Law Mediation

Family Law Mediation can be an excellent way to resolve a divorce, child support issue or child custody issue.  The parties meet with a mediator in an informal setting.  The mediator is impartial.  He listens to the concerns of both sides and aids the parties in coming to an agreement.  

The mediation may be completed in one session, or may need a few sessions to work out all of the details, depending on the complexity of the matter.  

The biggest benefit to mediation is that the parties avoid the costly process of litigation associated with a divorce or other family court matter.  

If you have any questions about the mediation process, or would like to schedule a mediation with one of our attorneys, contact Broadbent & Taylor today for details.

Family Law limited representation

The attorneys at Broadbent & Taylor are certified to represent Family Law clients on a limited representation basis.

Limited representation means that a client may be represented for a portion of the case, or for a specific hearing. For example, if a client needs help drafting the complaint, the client may hire the attorney to do that specific task. Also, if the client is looking for representation at just the pretrial hearing, or motion hearing, they may hire the attorney for that limited purpose. A client involved in a complicated divorce may hire the attorney to represent them on only the financial portion of the case, or only to deal with child custudy matters.

If you are looking to hire an attorney on a limited basis for a Family Law Matter, contact Broadbent & Taylor today for a consultation.

A New Era

On March 31, 2012 Massachusetts entered into a new era of estate planning and administration. Massachusetts has totally revamped its probate laws by adopting the Massachusetts Uniform Probate Code (MUPC). The changes to te law are vast and this article in no way addresses each change. The purpose of this article is to briefly cover the more important changes.

 

Administration of Estates

Previously, many people were confused by the jargon used in the administration of estates. What is the difference between executors, temporary executors, administrators, and special administrators? Worry no more! These terms have been done away with and all replaced by the simplier title of personal representative. 

 

In addition to the title change, there are now more ways in which the estate can be administered:

1.   Informal Administration  : this option is the simpliest and allows for a personal representative to be appointed as soon as seven (7) days after the person applying for appointment sends notice by mail to the interested persons specified in the statute. This is the fastest and least expensive form of administration because it does not require court supervision. The personal reqpresentative is still required to prepare an inventory, publish notice in the newspapers and circulating accounts, etc., this does not need to be done under the supervision of the court. Informal administration is available to estates of any size; however, this form of administration is the best option when the beneficiaries are in agreement regarding the distribution of the estate.

 

2.   Formal Administration  : As its name suggests, this form of administration is more formal and more closely resembles estate administration under the old law. Formal administration requires the filing of a petition resulting in formal notice to be ordered by the Court, with an opportunity to object. This of course means that this process takes more time. This type of administration is the better option when there are legal questions about the proceedings, the possibility of controversy, or if questions about a previously commenced informal administration arise. 

 

3.   Supervised Administration  : Supervised administration should only be used for the most controversial and complicated estates as it requires constant supervision by the court. 

 

4.   Voluntary Administration  : The final type of administration is available only to estates valued at less that $25,000, plus the value of one vehicle and includes no real estate. This administration has very little court involvement. If no probate is commenced, after thirty (30) days a statement may be filed with the Court. The signatory on the statement gives an oath that s/he will administer the estate according to the will, or as provided under the intestacy law.

 

Guardians and Conservators

Under MUPC the law distinguishes between a guardian and a conservator of a minor child. A guardian has control over the person and the conservator has control over the minor’s property. A parent should still name a person or persons to fill these rolls in the will, and the same person can be named as both the guardian and conservator. MUPC also allows a parent to name a guardian and conservator in a separate document so long as the separate document is witnessed by two people. 

 

Disposition of Tangible Personal Property

One of the most substantial changes brought about by MUPC is the ability for a testator to leave a memorandum of tangible personal property and the recipients of such property. This document can be separate from the will and can be changed without disrupting the will. The memorandum must describe the property and recipients with reasonable certainty and be signed. This document can be created either before or after the will as it is now a totally separate and binding document.

 

The Effect of Marriage and Divorce

Pre-MUPC, any existing will was automatically revoked upon marriage unless it is clear that the will was made in contemplation of the marriage. MUPC does require such automatic revision. Rather, the will survives and any bequests to descendants of the decedent are preserved. If any part of the estate was left to non-descendants of the decedent, these assets are used to satisfy the surviving spouse’s intestate share. This may be avoided, however, if it can be shown that the decedent otherwise provided for the surviving spouse in another manner, such as through a life insurance policy. 

 

Previously, the law stated that divorce partially revoked wills and unfunded revocable trusts of divorcing spouses so that property transfers to the ex-spouse, as well as nominations appointing the ex-spouse as executor or trustee, are cancelled. MUPC broadens this rule to have the same canceling effect on non-probate assets, such as life insurance policies. MUPC also revokes bequests to relatives of the ex-spouse. If the parties re-marry, the revoked provisions are revised; however, it is always advisable to update your estate planning documents after any major life event, including divorce and marriage.

 

Conclusion

As mentioned above, this article is not intended to be exhaustive of the changes to probate law in Massachusetts since the adoption of MUPC. The above-mentioned is a brief overview of some of the changes that will have the greatest impact on the greatest number of people.