June 2012

Property division now; division of college tuition bills later

Children from divorced parents face a number of challenges when their parents split. In fact, in addition to property division, most divorcing couples in Massachusetts spend time working out issues concerning their children. How custody will be divided, what child support is appropriate, even where the kids will spend holidays. However, many divorcing parents neglect to plan for their kids’ college educations, which can lead to frustration, argument and disappointment down the road. The US News and World Report cites the cost of a college education as $35,000 and above at a private school, and $20,000 or above at a public school. And those are current numbers; kids who are young will likely face higher costs when they are ready to start college. The cost of a college education is difficult for most families to manage, and when the parents are divorced, some students find themselves unable to attend at all. In one unusual case, a college student sued her father when he failed to pay her tuition. Suspecting her dad might not follow through on his promise to pay for college, she had him sign a contract specifying that he agree to pay for her education until she was 25, as long as she made a serious effort to apply for scholarships and financial aid. When he stopped paying during her senior year, she took him to court. The judge ruled in her favor, awarding her a $47,000 judgment plus attorney fees. The case made national headlines, but the

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Will property division tarnish amicable celebrity divorce?

Celebrity couple Courtney Cox and Davis Arquette has filed for divorce. The couple has been married since 1999, but separated two years ago. Despite at least one attempt to reconcile, the marriage seems destined to dissolve through the requisite court procedures. Massachusetts residents will remember the actress from her role on the hit show “Friends.” The attractive couple has long received a great deal of media attention, which will likely not abate as they work out issues of child custody and property division in divorce court. What makes this celebrity divorce unique is the lack of acrimony between the parties. Cox and Arquette have spoken kindly of one another throughout their separation, and have appeared together at multiple events. They have asserted that they are, and will remain “best friends.” The two filed their divorce papers on the same day, June 8, citing irreconcilable differences as the reason for the filing. They are also pursuing joint legal and physical custody of their 8-year-old daughter, and are committed to raising her together. At the present time, neither party has retained an attorney; they are planning to represent themselves during the court proceedings. Massachusetts fans of the couple will no doubt watch this divorce as it unfolds. Many are hoping that the courtesy and grace with which the two have handled their split will continue. However, even what could be considered a simple divorce proceeding can become contentious. In a case involving spouses with high net worth it becomes even more difficult

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Gay marriage: federal appeals court in Boston rules on benefits

On Thursday, May 31 a Massachusetts federal appeals court ruled that the Defense of Marriage Act is unconstitutional in its denial of federal benefits to gay couples who have married. The ruling is viewed as a significant and welcome victory for those who support the legitimacy and legality of gay marriage. The decision focused on the rights of legally married gay couples to receive federal benefits. Massachusetts has long been a trailblazer in the push to legalize and support gay marriage within the United States. Last week’s ruling continues that tradition by agreeing with a lower court’s 2010 decision which stated that the Defense of Marriage Act violates the constitutional right of states to define and regulate marriage within their own boundaries. Furthermore, such laws unfairly deny same-sex couples who marry the same federal benefits that heterosexual couples regularly enjoy. This ruling focuses solely on the benefits section of the law. No deliberation was held on the more controversial aspects of the law, including the provision that states that do not allow same-sex marriage cannot be forced to acknowledge or honor gay marriages performed in states that do allow the practice. Nor did the panel of appeals judges consider the question of whether same sex couples have a constitutional right to marry. Proponents of gay marriage cite the ruling as an important victory; one that will allow gay couples the right to federal benefits such as health care, survivorship benefits and the ability to file joint federal tax returns. Furthermore,

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Transgender man maintains his father’s rights in custody case

Father’s rights can always be a tough issue in court, no matter the circumstance. But this is especially so for fathers that might be considered non-traditional in many circles. While Massachusetts and a handful of other states currently are leading the way of marriage equality and progress, many other states unfortunately still lag behind. Because of this, it is encouraging to see a judge assert that a transgender man still has father’s rights over his own children. The couple, including a transgender man and a woman, had been married for nine years before they finally divorced. In this span, the couple had three children together, including one which the husband gave birth to in 2008, earning him the title of the “pregnant man”. However, apparently in 2012, the relationship ended when the couple divorced, with the husband citing that his wife had physically attacked him several different times. Though the wife denied this and said that he had attacked her, after looking at the evidence available, a judge issued a restraining order against the wife. In addition, the transgender man has been awarded full custody of his three children in their divorce. Though their mother is allowed to see her children for six hours each week, the parenting time must be supervised. While it is always hard to speculate what would have happened in past decades, it is plausible that, considering the circumstances of this particular situation, the father would not be granted his father’s rights or given custody of

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Same-sex couple’s divorce paves way for gay marriage rights

While Massachusetts is a notable exception, most states do not recognize same-sex marriages to be valid. Instead, they often insist that marriage should only be between a man and a woman and impose various legal restrictions to keep it that way. For many same-sex couples living outside of Massachusetts as well as other states that allow gay marriage, this can be a huge source of frustration. Same-sex couples who reside in states who do not recognize their marriage have been caught up in a marital discord limbo while fighting for their rights to divorce. However, there are indications that many states are recognizing the downside to these limitations and are beginning to permit the dissolution of same-sex marriages. Some states are beginning to allow same-sex couples many of the same rights and privileges as the more traditional marriages surrounding issues such as child custody and divorce, among others. States who do not recognize same-sex marriages argue that if they permit a same-sex divorce, by default they are acknowledging the legitimacy of the marriage. In recent news, Maryland’s Court of Appeals ruled unanimously that if a same-sex couple resides in the state and was legally married in another jurisdiction, they can receive a divorce in Maryland. For many supporters of gay marriage, this change is regarded as a victory. After all, they argue that before gay marriage can be legalized for any state, gay marriages must be recognized as valid. They feel that divorce is one way in which a state

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Why divorce for Boston’s same-sex couples is both more and less complicated

Massachusetts is one of the few states in the U.S. that allows same-sex marriage. Regardless of how you feel about that, it is true that allowing same-sex couples to marry can greatly simplify some legal aspects of their lives together. One of those aspects is the end of the relationship, be that by divorce or the death of one of the partners. Take the case of two men from Minnesota. Although the partners of 25 years were married in San Francisco, Minnesota did not recognize their union. So when one of the men died unexpectedly at 46 without a will, the state’s default estate plan meant that his partner did not have legal standing the same way a wife would and thus did not automatically inherit anything. The surviving partner is now locked in a prolonged and complicated court battle in an attempt to recover what he believes should be his. Although such a scenario would not play out in Massachusetts, that doesn’t mean we have all legal elements relating to same-sex marriage smoothed out completely. If a same-sex couple wants to get a divorce, it can be trickier than a divorce for a heterosexual couple for several reasons. For example, because gay men and women were not allowed to marry in our state for so long, many couples have been unmarried partners for a long time, which makes their marriages look artificially short. That has implications for things like property division and spousal support. Finding an attorney who understands

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Woman claims soon-to-be-ex spent $850,000 to earn mistress commission

Boston shoppers who patronize the fancy department store Neiman Marcus (even if it’s just to look, rather than to buy) know that the luxury goods retailer is famous for its generous return policy. But that return policy is not good enough for one woman, who is angry that Neiman Marcus won’t let her return about $1.4 million in gifts from her soon-to-be-ex-husband. The woman, who is in the process of getting a divorce, believes that her husband purchased the items for her from a store employee with whom he was having an affair. She feels that he purchased the items not to make her happy, but to earn the employee a generous commission. This woman has sued Neiman Marcus over the issue and although her lawsuit is against the store and not against her husband, it is worth considering from a family law and divorce perspective, too. The woman claims that her husband went from spending about $100,000 per year at Neiman Marcus before he began having the affair to spending around $850,000 after the affair began. She says she did not know about the spending. In other words, what we have here is an issue in which one spouse’s dramatic spending was kept secret from the other and, obviously, that kind of spending can seriously deteriorate one’s financial condition, especially when you must go through the process of dividing up martial assets (like cash-on-hand) into separate assets. We do not know if this lawsuit will be successful, but it

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