Law Office of Isaac J. Mass -- Greenfield, Massachusuetts
August 1st 2013, Massachusetts adopted new child support guidelines for the Probate and Family Court.  While the court reviews guidelines every four years, these changes are the most sweeping in some time.  the most significant changes are:

  • Income from means tested benefits such as SSI, TAFDC, and SNAP are excluded for both parties from the calculation of their support obligations.
  • Availability of employment at the attributed income level must be considered in attribution of income cases.  (i.e. if you can work as a nuclear scientist, but they just closed Vermont Yankee the closure is a factor to be considered).
  • The text makes clear that all, some, or none of income from secondary jobs or overtime may be considered by the court, regardless of whether this is new income or was historically earned prior to dissolution of the relationship. (You do not have to be penalized working more to meet already established child support obligations and your own reasonable living expenses.)
  • Reference is made to the 2011 Alimony Reform Act; the text does not, however, provide a specific formula or approach for calculating alimony and child support in cases where both may be appropriate.
  • Clarification is given as to how child support should be allocated between the parents where their combined income exceeds $250,000.
  • A new formula is provided for calculating support where parenting time and expenditures are less than equal (50/50) but more than the assumed standard split of two thirds/one third. (You can pay less child support if you have a high level of visitation, likewise the court can order more child support for less than on third visitation.)
  • Guidance and clarification is given in the area of child support over the age of eighteen where appropriate.  While the Guidelines apply, the court may consider a child’s living arrangements and post- secondary education. Contribution to post-secondary education may be ordered after consideration of several factors set forth in the Guidelines and such contribution must be considered in setting the weekly support order, if any.
  • The standard for modification is clarified to reflect the recent Supreme Judicial Court decision in Morales v. Morales, 464 Mass. 507 (2013). (Modification to child support does not require a material change in circumstances).
  • Circumstances justifying a deviation are expanded to include extraordinary health insurance expenses, child care costs that are disproportionate to income or when a parent is providing less than one-third parenting time.

If you have a case involving custody, support or visitation and want more information on the application of the new child support guidelines, or advice on seeking a modification to an existing order, contact the Law Office of Isaac Mass at 413-774-0123 to schedule a consultation.

_ Today, the Massachusetts Appeals Court, in Cesar vs. Sundelin, No. 11-P-351(2012) found that in dividing a marital estate that includes a family business a judge of the Probate and Family Court has the authority to enjoin the party that no longer will have any ownership in the business from operating a competing business.

Although the court located no Massachusetts case that holds that a probate judge has specific authority to impose non-compete orders, the court looked the Supreme Judicial Court of Maine reasoned, "Without such an agreement, the substantial value of the intangible good will would be lost or the parties would be left to compete in recapturing this portion of their marital property." Lord v. Lord, 454 A.2d 830, 834 (Me.1983).

The Appeals court noted that the Massachusetts Supreme Judicial Court held more than one century ago, "[G]ood will is property, and is a valuable asset in [an individual's] business." George G. Fox Co. v. Glynn, 191 Mass. 344, 348 (1906). Therefore the court found that, the good will of a business is part of the marital property subject to equitable distribution, and a probate judge may exercise his equitable authority as necessary to effect the distribution. See Santagate v. Tower, 64 Mass.App.Ct. 324, 328 (2005).

 The Appeals Court did recognize that the terms of any such order must be "reasonable and no broader than necessary to protect the good will included in the valuation and transfer." Lord v. Lord, supra. Cf. Wells v. Wells, 9 Mass.App.Ct. 321, 324-325 (1980) and ultimately remanded the case for such a determination.

It remains to be seen if this decision is further appealed as it gives great latitude to judges acting in equity in areas outside of the family and probate court.  Historically, in Massachusetts there has been no equitable ability to impose a non-compete provision on parties.  All of the case law on the enforceability of non-compete agreements are in the contractual context. See e.g.Richmond Brothers, Inc. v. Westinghouse Broadcasting Co., Inc., 357 Mass. 106 (1970) (“An employer is not entitled to protection against ordinary competition.” ); Novelty Bias Binding Co. v. Shevrin, 342 Mass. 714 (1961) (“It has been long settled in this Commonwealth that a covenant inserted in a contract for personal service restricting trade or competition or freedom of employment is not invalid and may be enforced in equity provided it is necessary for the protection of the employer, is reasonably limited in time and space, and is consonant with the public interest. What is reasonable depends on the facts in each case.").

If you have a divorce which will involve a division of a family business, it critical that you have an attorney who understand non-compete agreements and can argue before a judge why any particular injunction against doing business is appropriate or overly broad based on its duration, location, and industry.  Further you will need an attorney who can work with industry experts who can not only value good will, but also offer opinions on the impact of competition on that good will.  If you have questions about your divorce contact the Law Office of Isaac J. Mass to arrange a no cost consultation.

_ Many people who leave a spouse live in fear that they will never get a fair shake because they cannot afford to hire an attorney.  After all they were the one who stayed home and took care of the children, while their spouse made all the money.  Now that they are living apart they barely have enough money to provide for themselves let alone the children and hiring an attorney seems impossible.

You should not despair!  M.G.L. c. 208 § 38 provides a remedy for you.  A judge may, at your request, exercise their discretion to “award costs and expenses, or either, to either party, whether or not the marital relation has terminated. In any case wherein costs and expenses, or either, may be awarded hereunder to a party, they may be awarded to his or her counsel, or may be apportioned between them.”  That means the Judge can order your spouse to pay for your attorney.  Judges are frequently happy to do this when the finances of the parties are appropriate because an attorney can often resolve the problems more efficiently with the aid of an attorney using less of the court’s time.

But how do you get a judge to exercise their discretion to award attorney’s fees?  You can have an attorney file a limited assistance appearance for the purpose of representing you for your motion for funds.  In such a case, if you are awarded funds you may hire the attorney who represented you on the motion or you may hire a different attorney with the funds ordered by the judge.  If you are not awarded funds, the attorney can withdraw or may at their discretion continue to represent you for a fee which you can afford or pro bono (for free) if appropriate.  It is important to have strong financial evidence to present the judge when making such a request.  The judge will want to know that you do not have the means to pay for an attorney and that your spouse does. 

Finally, just because your spouse is trying to handle the divorce on his or her own, does not mean you need to do the same.  You can file such a motion for funds, even if your spouse has not hired an attorney of his or her own. 

If you want more information on filing a motion for funds you can contact Attorney Isaac Mass at the Law Office of Isaac J. Mass. In addition to providing Limited Assistance Representation in divorce and family law proceedings, the Law Office of Isaac J. Mass also accepts credit card payments and financing arrangements based on anticipated property settlements.  Note, however, that unless you have an order for funds from a judge, you are responsible for your own legal fees, even when a settlement or property division is not as anticipated.  It is illegal and unethical, under Rule 1.5(d) on the Massachusetts Rules of Professional Conduct, for attorneys to take a divorce case on a contingency fee basis based on obtaining a specific result in alimony, support or property settlement.  Some attorneys can and do take collections cases on a contingency fee basis if you already have a judgment and simply need to have it enforced.

_ A record low, just over half of all adults in the United States are currently married, and the median age at first marriage has never been higher for brides (26.5 years) and grooms (28.7), according to a new Pew Research Center analysis of U.S. Census data.

In 1960, 72% of all adults ages 18 and older were married; today just 51% are. If this trend continues, the percentage of adults who are currently married will drop to below half within a few years. Other adult living arrangements including cohabitation, single-person households and single parenthood-have all grown more common in the last few decades.

The Pew Research study also finds that the number of new marriages in the U.S. declined by 5% between 2009 and 2010, a sharp one-year drop that may or may not be related to the poor economy.  The research, however, however shows a continuing reverence for marriage with 61% of those never married still desiring to eventually marry.

Massachusetts has some of the most far-reaching laws in the nation regarding the rights of unmarried people living in a co-habitation arrangement. Co-habitation agreements are best thought of as legal contracts between parties. If Massachusetts residents are living with each other and believe they have a general agreement regarding division of financial and material assets, Attorney Isaac Mass recommends that they get it in writing. Courts will view these agreements the same way they would other personal and business contracts. If it's not in writing, it will probably not be enforceable at the time of the relationships demise. Whether you are considering moving in together or have been living in a co-habitation arrangement for a long time, make sure your verbal agreements are put in writing.

The Law Office of Isaac J. Mass can assist clients in putting their co-habitation agreement written and signed into a valid contract. Contact us to learn more about our full range of family law services for married and unmarried couples.

_ 2012 is a big year for the Massachusetts Family and Probate Court.  In addition to the changes under the Massachusetts Unified Probate Code that go into effect January 2nd, on March 1st the Alimony Reform Act goes into effect.  The Alimony Reform Act sets presumptive durational limits for alimony and presumes an end to alimony at retirement.  This is a big change from the past when alimony was indefinite and could be paid for life. So what if you are paying alimony already.  Not to worry, the Alimony Reform Act makes the passage of the act itself a material change in circumstances for the purpose of a modification. 

Starting in March 1, 2013, those currently paying alimony on a marriage of less than five years can bring an action for modification to terminate or set an end date for alimony payments.  The following year, March 1, 2014, those with marriages under ten years can do the same.  By March 1, 2015, those married for fifteen or fewer years can do the same.  Those with marriages over twenty years are scheduled under the Alimony Reform Act to have to wait the longest, September 1, of 2015.

If you are paying alimony now you do not have to wait and you should not wait.  Contacting an attorney today is the best way to win your case in the future.  Putting your former spouse on notice legally that you intend to sue for a modification now takes away the argument that they were unduly surprised and are unprepared for alimony to end.  Also your former spouse may be willing to come to an agreement prior to the statutory date, thus saving the costs of litigation.  Finally if you have a material change in circumstances outside of the passage of the Alimony Reform Act you can bring an action for medication now.

This is not a slam dunk, while the Alimony Reform Act is quite clear in its intent to limit the duration of alimony and create finality to divorce, there are exceptions.  Judges still have discretions to deviate from the presumptive durational limits based on a number of factors and new forms of alimony were created.  Contacting an attorney to represent you in this very new and complicated statute is your best chance of a good outcome.  And if you are receiving alimony, you will want to contact an attorney to ensure that your rights are upheld, any negotiated settlements favors you and that deviations from the presumptive durational limits under the Alimony Reform Act that are appropriate are made.


(c) 2012 Law Office of Isaac J. Mass, 289 Main Street, Suite 201 Greenfield, MA 01301