Family Law
Opening Sentence: The rights of the parties will be governed by Massachusetts domestic
relations or family law.
PREMARITAL AGREEMENTS - to be valid, the agreement must be in writing, fully
discloses the party’s assets, and executed BEFORE the wedding. The agreement must be fair
and reasonable at the time of execution. Generally, the party should have sufficient time to have
independent counsel evaluate the agreement if he/she desire. (The agreement cannot be the
product of fraud or duress - if signed right before the wedding; it is usually the product of duress.
The Court must make sure that the agreement is not unconscionable at the time of divorce.
The Premarital Agreement  cannot leave one party dependent on public benefits.
- A provision waiving alimony or support is INVALID if the party would otherwise
require public assistance
Property Division: In addition to or in lieu of alimony, Court may order an equitable division of
property. Marital property includes all the property of the parties no matter how it is titled or
when it was acquired. The Court will divide marital property equitably.
Court MUST consider all of the alimony factors AND the present and future needs of the
dependent children of the marriage in making a property division.
A Court will also consider each party’s contribution to the acquisition, preservation, and
appreciation of value of the marital estate and each party’s contribution to the household
including being a homemaker
Recent Issue: →
Value of stock options will be evaluated and can be made part of the
martial estate.
Alimony: See infra → new alimony laws!
An alimony award and subsequent judgment entered on or after March 1, 2012 must be calculated
based on the new alimony guidelines. For marriages that lasted less than 20 years, the period of
payment of general alimony will be calculated based on a percentage of the number of months of
marriage. If the marriage lasted more than 20 years, a court may order alimony for an indefinite
length of time.
Custody: The standard used in awarding custody is the BEST INTEREST of the child. Types:
physical or legal custody/joint or sole custody. If a guardian ad lietum is appointed  the GAL
may make recommendations to the Court.
Child Support: Best interests of the child. CS can continue until child reaches 18, 21 if living
w/parent and principally dependent on them, or 23 if child is dependent and in school.
1
Copyright Robert A. Coulthard 2018
All Rights Reserved
New CS guidelines –If the gross income of the parties is 250K or greater, and the parents
enter into a fair and reasonable agreement, parents share custody, the CS guidelines do
not apply. Otherwise, you look to the Guidelines to determine CS.
Court uses guidelines to determine the minimum amount of child support and has discretion to
increase that amount.
Jurisdiction: MA is the home state, if MA was the home state at the start of custody action, or
MA has been the child’s home state w/in the last 6 months. The UCCJA is followed in MA.
Visitation: noncustodial parent has the right to a definite visitation schedule.
Removal from the Jurisdiction → Court will look to the child’s wishes FIRST → The issue is
whether the child is capable of consenting to removal. If so, consent from the child controls. If
not, then you need consent of both parents, and if mot the court will decide the issue.
Longer Version
Divorce → Mass recognizes fault based and no-fault divorces.
Property Division → Use this Rule Statement
In addition to or in lieu of alimony, the court may order an equitable division of all
property. Martial property is classified as all property owned by the parties no matter how titled
or when acquired. Marital property can include property acquired before the marriage.
A judge has discretion to include premarital assets as part of the marital estate and he also
has considerable discretion in determining how to divide the assets equitably. (Massachusetts has
no hard and fast rules as to appropriate allocation of premarital assets). A court will not reverse
a judgment with respect to property division unless it is “plainly wrong and excessive.”
If premarital property was included in the estate, a court could include the increase in
value of the property since marriage or value the entire asset for purposes of division.
In dividing the property, the court must (shall) consider the statutory alimony factors and the
present and future needs of the dependent children of the marriage.
In addition the court may consider:
1. each party’s contribution to the acquisition, preservation, or appreciation in value of
the respective estate
2. each party’s contribution as a homemaker in the family
Marital Estate is valued at the time of the divorce trial. The court has discretion to value the
estate at separation.
→
Divorce is final 90 days from the entry of judgment.
2
Copyright Robert A. Coulthard 2018
All Rights Reserved
Custody
“Sole legal custody”, one parent shall have the right and responsibility to make major decisions
regarding the child’s welfare including education, medical care and emotional, moral and
religious development.
“Shared legal custody”, is a continued mutual responsibility and involvement by both parents in
major decisions regarding the child’s welfare including education, medical care and emotional,
moral and religious development.
“Sole physical custody”, a child shall reside with and be under the supervision of one parent,
subject to reasonable visitation by the other parent, unless the court determines that such
visitation would not be in the best interest of the child.
“Shared physical custody”, a child shall have periods of residing with and being under the
supervision of each parent; provided, however, that physical custody shall be shared by the
parents in such a way as to assure a child frequent and continued contact with both parents.
A court shall, in the absence of misconduct, consider the rights of both parents equally
and the happiness and welfare of the children when determining and awarding custody. When
considering the happiness and welfare of the child, the court shall consider whether the child’s
present or past living conditions adversely affect his physical, mental, moral or emotional health.
Custody → MA follows the UCCJA (not the UCCJEA)
To determine the jurisdiction over a child for custody purposes:
1.
MA is the home state if: (1) MA is the home state of the child on the commencement of
the custody; or (2) MA had been the child's home state within six (6) months before the
date of the commencement of the proceeding and at least one parent still resides in MA;
or
2.
It is in the best interest of the child that a court assume jurisdiction if (i) the child and
both parents, or the child and at least one parent, have a significant connection with the
state, and (ii) there is substantial evidence connecting the child's present or future care,
protection, training, and personal relationships to the state; or
3.
The child is physically present in the commonwealth and (i) the child has been
abandoned or (ii) it is necessary in an emergency to protect the child from abuse or
neglect or for other good cause shown; or
4.
No other state would have jurisdiction.
3
Copyright Robert A. Coulthard 2018
All Rights Reserved
Removal from the Jurisdiction
A child subject to a MA court’s ,jurisdiction, who is a native of MA, or has lived here for
5 years, cannot be removed from the state without the child’s consent. If the child is too young to
consent, → the consent of both parents is needed. Otherwise, the court upon cause shown can
order removal. “Upon cause shown” means that removal must be in the best interests of the
child.
Visitation Rights Of Grandparents
A grandparent seeking visitation with a child over the objections of a fit parent must rebut a
presumption that the parent's decision is legally valid. The presumption may be rebutted by a
preponderance of the evidence that the denial will cause significant harm to the child’s health,
safety, or welfare.
PARENTAL KIDNAPPING PREVENTION ACTS
The federal Parental Kidnapping Prevention Act (“PKPA”) requires courts to give full faith and
credit to custody judgments entered by other states.
Child Support
Under these circumstances, the court will be allowed to deviate from the guidelines










parties agree and court approves it
child has special needs or aptitudes
child has extraordinary medical or other expenses
a party would be left without the ability to care for him/herself
payor is in jail, (likely for 3 + years and has no assets)
application leads to gross disparity in income
parent has extraordinary medical expenses
parent has extraordinary travel or other expenses related to parenting
application of guidelines may adversely impact re-unification of parent and child
application is not in the best interest of the child.
Under the current guidelines, a court will award child support and can consider the following:





Gross income of the parents (remember if over $250,000 → guidelines may not apply)
Both parties' incomes are treated equally
Child support is based on the primary residence with one parent and one-third of time
with the other.
Specify how child support should be calculated in a shared custody arrangement
A second job or overtime obtained after the child support order is issued doesn’t count in
future child support orders
4
Copyright Robert A. Coulthard 2018
All Rights Reserved
A Court will look at the history of the income, expectation that the income will continue to be
available, economic needs of the parties and children, impact of the overtime of parenting plan
and whether extra work is a requirement. In calculating income, the cost of health insurance is
deducted from the parents salary, regardless of who is covering the child(ren).
The recipient is responsible for the first $250 of uninsured medical/dental/vision expenses
combined for all children covered under the order
Premarital and Martial Agreements
→ A premarital agreement is valid if
1.
2.
3.
4.
The agreement must be in writing (Written)
Executed prior to the wedding
Full financial disclosure of the assets
Fair and Reasonable at the time of execution and at the entry of divorce
Parties should have legal counsel. The agreement will ordinarily be enforced if it
is executed properly and there is no fraud or duress involved in its execution. A
premarital agreement that is signed immediately prior to the wedding → could be
evidence of duress.
Courts will take a "second look" at the time of the divorce to make sure that the
agreement is not unconscionable in light of the circumstances at the time you are
seeking to enforce it. A provision waiving alimony or support is invalid if the
party in need will otherwise require public assistance.
Marital Agreement
→ MA will now uphold a marital agreement (same factors basically as premarital agreement).
In MA, the judge should determine whether:
(1) each party has had an opportunity to obtain separate legal counsel of its choosing;
(2) there was no fraud or coercion/duress;
(3) all assets were fully disclosed by both parties before the agreement was executed;
(4) each spouse knowingly and explicitly agreed in writing to waive the right to a judicial
equitable division of assets and all marital rights in the event of a divorce; and
(5) the terms of the agreement are fair and reasonable at the time of execution and at the time of
divorce.
Where one spouse challenges the enforceability of the agreement, the spouse seeking to enforce
the agreement shall bear the burden of satisfying these criteria. A party seeking to enforce an
agreement must show that the other party's consent to it was informed and not obtained under
duress
5
Copyright Robert A. Coulthard 2018
All Rights Reserved
→
MA uses the term “premarital” agreement for what is often termed a
prenuptial or antenuptial agreement, and the term “marital” agreement for
what is often termed a postnuptial agreement.
Validity/Enforceability of an Out of State Divorce:
Full and Faith and Credit will be given to an out of state divorce. A judgment that is valid in one
state must be recognized by another state, provided that:
•
•
The court that issued the judgment had personal jurisdiction over the
parties and subject matter jurisdiction over the case
The court issued a final judgment based on the merits
→ If the Ct has personal jurisdiction over the parties, an out of state court may be able to resolve
certain issues like granting a divorce, but the out of state court could not dispose of property
located in MA. Most out-of country divorces, decreed without both parties present, are not valid.
Paternity
When a child is born out of wedlock, the parties can establish paternity in MA, by jointly
executing a written notarized voluntary acknowledgment of parentage (VAP) and filed EITHER
with a) the registrar of vital records and statistics, or b) with the court.
The voluntary acknowledgment shall be notarized, and shall include the residence addresses and \
social security numbers of each of the parents, the residence address of the child and, if available,
the social security number of the child.
A voluntary acknowledgment of parentage taken outside of the commonwealth shall be valid if it
was taken in accordance with the laws of the state or the country where it was executed.
The right of rescission is limited to 60 days. A claim of paternity may not be revoked after the 60day period except by court action on the basis of fraud, duress, or material mistake of fact.
Presumptions→ A signed and notarized VAP creates a presumption of paternity. The person who
signed the form is presumed to be the parent unless proved otherwise
MA - Frozen Fertilized Embryos
In MA, as a matter of public policy, even where a consent form is unambiguous as to the
disposition of frozen embryos after a divorce, MA courts will not enforce an agreement that would
compel one donor to become a parent against his or her will.
6
Copyright Robert A. Coulthard 2018
All Rights Reserved
MA - New Alimony Law → The new alimony law is effective for any alimony judgment entered
on or after March 1, 2012.
If you see facts in a family law question that would lead you to discuss whether the alimony
should be awarded, then write the following
An alimony award and subsequent judgment entered on or after March 1, 2012
must be calculated based on the new alimony guidelines. For marriages that lasted less
than 20 years, the period of payment of general alimony will be calculated based on a
percentage of the number of months of marriage. If the marriage lasted more than 20
years, a court may order alimony for an indefinite length of time.
If you see alimony, write the above ↑ If you can remember the % great, if not, don’t worry!
For marriages of 20 years or less, general term alimony shall terminate as follows
1.
5 years or less → (1/2) one-half the number of months of the marriage (e.g.
married 2 ½ yrs or 30 months, then alimony shall be paid for 15 months)
2.
5 to 10 years → 60 % of the number of months of the marriage.
3.
10 to 15 years → 70 % of the number of months of the marriage.
4.
15 to 20 years → 80 % of the number of months of the marriage
5.
> 20 yrs → court may order alimony for an indefinite length of time
General Term Alimony applies to an ex-spouse who was economically dependent. General
term alimony shall be suspended, reduced or terminated if the ex-spouse maintains a common
household w/another for a continuous period of at least 3 months.1 General term alimony will
terminate upon remarriage. Payor may have to provide reasonable security, such as life
insurance.
General term alimony may be modified upon a showing of a material change of circumstances
warranting the modification.
General term alimony orders shall terminate upon full retirement age. The payor’s ability to
work beyond the full retirement age shall not be a reason to extend alimony. For good cause
shown, a court may enter written findings setting a different termination date.
1
To determine the issue of a common household, courts may consider any of the following factors:
(i) oral or written statements or representations made to third parties regarding the relationship of the persons;
(ii) the economic interdependence of the couple or economic dependence of 1 person on the other;
(iii) the persons engaging in conduct and collaborative roles in furtherance of their life together;
(iv) the benefit in the life of either or both of the persons from their relationship;
(v) the community reputation of the persons as a couple; or
(vi) other relevant and material factors
7
Copyright Robert A. Coulthard 2018
All Rights Reserved
The court may grant an extension of an existing alimony order for good cause shown if the court
enters an order supported by written findings that
1,
a material change of circumstance has occurred since the entry of the initial
alimony judgment; and
2.
that the reasons for the extension are supported by clear and convincing evidence.
Rehabilitative Alimony applies to an ex- spouse who is expected to become economically selfsufficient by a predicted time (e.g. reemployment; completion of job training; or receipt of a sum
due from the payor spouse under a judgment). Payor may have to provide reasonable security,
such as life insurance.
The following types of alimony apply to a marriage of less than 5 years:
Reimbursement Alimony means payment to an ex-spouse to compensate ex-spouse for economic
or noneconomic contribution to the financial resources of the payor spouse, such as enabling the
payor spouse to complete an education (like law school!) or job training. Terminates upon the
death of the ex-spouse or a date certain and cannot be modified.
Transitional Alimony means payment to an ex-spouse to transition ex-spouse to an adjusted
lifestyle or location as a result of the divorce. Terminates upon the death of the ex-spoiuse or a
date certain and cannot be modified or extended. This type of alimony cannot last longer than 3
years from divorce. Payor may have to provide reasonable security, such as life insurance.
Calculating Alimony
In determining the appropriate form of alimony and in setting the amount and duration of
support, a court shall consider:
1.
2.
3.
4.
5.
6.
7.
8.
9.
the length of the marriage;
age of the parties; health of the parties;
income,*
employment and employability of both parties, including employability through
reasonable diligence and additional training,
if necessary; economic and non-economic contribution of both parties to the marriage;
marital lifestyle;
ability of each party to maintain the marital lifestyle;
lost economic opportunity as a result of the marriage; and
such other factors as the court considers relevant and material.
* Income shall be defined as set forth in the MA child support guidelines, but shall not include
capital gains income and dividend and interest income which derive from assets already
equitably divided between the parties
Temporary Alimony paid → shall not counts towards the length of total award (new case)!
8
Copyright Robert A. Coulthard 2018
All Rights Reserved
Except for reimbursement alimony or circumstances warranting deviation for other forms of
alimony, the amount of alimony should generally not exceed the need of the individual or
30-35% of the difference between the parties’ gross incomes
Length of the marriage = the number of months from the date of legal marriage to the date of
service of a complaint → a court may increase the length of the marriage if there is evidence that
the parties became economically dependant during cohabitation prior to the marriage.
Calculating the Value of the Marital Estate (for purposes of property division)
Upon divorce, the court may make a judgment for either of the parties to pay alimony under the
new alimony laws. In addition to or in lieu of a judgment to pay alimony, the court may assign to
either of the parties all or any part of the martial estate of the other.
Massachusetts is an equitable distribution state. In fixing or calculating the value the marital
estate (property), a court shall consider:
1.
2.
3.
4.
5.
6.
7.
8.
the length of the marriage,
the conduct of the parties during the marriage,
the age, health, station, occupation,
amount and sources of income,
vocational skills, employability, estate,
liabilities and needs of each of the parties,
the opportunity of each for future acquisition of capital assets and income, and
the amount and duration of alimony, if any, awarded under the new alimony laws
In determining the property distribution, the court shall also consider the present and future
needs of the dependent children of the marriage.
The marital estate includes but is not limited to, all vested and nonvested benefits, rights and
funds accrued during the marriage, including, but not be limited to:




retirement benefits,
military retirement benefits if qualified under and to the extent provided by
federal law,
pension, profit-sharing, annuity, deferred compensation and
insurance.
Remember:
Property acquired during the marriage shall be subject to equitable division. Any real and
personal property owned prior to the marriage will be considered the separate property of that
spouse. However, a judge “may assign to either husband or wife all or any part of the estate of
the other.” That includes property acquired prior to the marriage. See Rice v. Rice, 361 N.E.2d
1305.
9
Copyright Robert A. Coulthard 2018
All Rights Reserved
Significant Changes to the Child Support Guidelines
Old
New
Gross income is greater than $135,000
Gross income is greater than $250,000
Based on “traditional custody and
Primary residence with one parent and one-third of
visitation arrangement”
time with the other.
Did not apply in shared custody
Specify how child support should be calculated in a
arrangement
shared custody arrangement
Income
A second job or overtime obtained after
the child support order is issued is
considered income for future child
support orders
Any income, including part-time jobs
and overtime, is considered income for
the purpose of calculating support. The
courts look to whether part-time jobs or
overtime constituted a regular source of
income when the family was intact
A second job or overtime obtained after the child
support order is issued doesn’t count in future child
support orders
Court looks at the history of the income, expectation
that the income will continue to be available,
economic needs of the parties and children, impact
of the overtime of parenting plan and whether extra
work is a requirement.
Adjustments
Increased child support once child
reached 13 years old
Support for children over 18 is at the
court's discretion
Provides no adjustment for children over 13
Does not apply to children over 18
Spousal and child support are deducted, along with
Spousal and child support should be
voluntary payments to support a child (as long as
deducted from the payor’s gross income
they are reasonable)and a hypothetical amount of
child support for a child that resides with the payor
Payor is credited for one-half of health
insurance if covering the child(ren)
Custodial parent's income automatically
reduced by $20,000
Entire cost of health insurance is deducted from the
salary of Payor or recipient, regardless of who is
covering the child(ren).
Both parties' incomes are treated equally
Other
The recipient is responsible for the first $250 of
uninsured medical/dental/vision expenses combined
for all children covered under the order and the
court shall allocate any amount above that
10
Copyright Robert A. Coulthard 2018
All Rights Reserved
11
Copyright Robert A. Coulthard 2018
All Rights Reserved