Massachusetts Wed Same-Sex Couple Allowed to Divorce in Pennsylvania

Same-Sex

About ten years ago, a same-sex couple married on the first day that the state of Massachusetts allowed for legalized same-sex weddings. According to a report in the L.A. Times, the women relocated to Pennsylvania with their one-year-old daughter to finish school and start a business. When their happy ending ended in a decision to divorce, the couple found themselves unable to do so because the state of Pennsylvania did not recognize their marriage. Without that recognition, the state refused to allow them to engage in the divorce process, even though Massachusetts legally recognized them as a married couple. According to the report, going through the Massachusetts courts was not an option, because neither spouse was a resident of the state any longer. Relocation and established residency are required before a divorce action is commenced. The couple decided to stay married and live separate lives, while hoping for a change in the Pennsylvania laws.

After more than five years of waiting, that change came earlier this week when a federal judge found Pennsylvania’s ban on same-sex marriage unconstitutional. The next day Pennsylvania Governor Tom Corbett announced that he would not seek to overturn the ruling, paving the way for same-sex marriages in Pennsylvania and the recognition of same-sex marriages from other states.

This situation is reportedly a common one among the gay community. The variation of state laws create a situation where same-sex marriages are treated vastly different depending on the jurisdiction. Within the last year, New Jersey and Delaware legalized same-sex marriage, but this was of no assistance to the married couple in the article, even though they resided in a neighboring state. Federally, the United States Supreme Court struck down the Defense of Marriage Act (DOMA), which allowed same-sex married couples to claim federal benefits. The United States Treasury Department also weighed in on the controversial debate, by allowing the couples to file joint tax returns.

According to the report, Delaware, Vermont and Maryland waive the residency requirement for same-sex married couples who want to file for divorce in their jurisdictions. The states of Wyoming and Colorado do not allow same-sex marriages. However, the legislatures adopted laws to allow for divorces of same-sex couples married elsewhere.

Divorce in Massachusetts

The state of Massachusetts requires one-year of residency for a divorce, or the grounds for divorce must occur within the state. The possible grounds for divorce include:

  • Adultery on the part of one or both spouses;
  • Desertion of spouse that has been continuous for at least one year;
  • Cruel and abusive punishment;
  • Impotency;
  • Habitual, voluntary drunkenness or intoxication; and
  • Cruel and wanton refusal to provide financial support.

Massachusetts also recognizes a no-fault grounds for divorce, which is the irretrievable breakdown of the marriage, without no fault being placed on either party.

Regardless of the grounds claimed, a collaborative divorce can assist in making the process more amicable and lessen the amount of court involvement. In a collaborative setting, the spouses voluntarily work with a neutral third party to come to a mutually acceptable agreement.

The Law Office of Martin Murphy LLC can assist you and your spouse with a collaborative divorce settlement. Call the office today at (781)285-8989 for a consultation.

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Mediation of Custody in Massachusetts

Child

Custody determinations are extremely challenging during the divorce process. Emotions are high as parents work, struggle and sometimes fight to decide the best living arrangements for their children. Custody mediation is meant to ease the contention of the process, bringing both parents together in a non-confrontational setting to calmly discuss the needs of the children and create a custody arrangement that is satisfactory to all involved.

In the state of Massachusetts, several custody determinations are made:

  • Physical Custody – This is the determination of where the children will physically live on a daily basis. There are two types of physical custody:
    • Sole Physical Custody – One parent is given sole custody of the children. That parent becomes the custodial parent and primary caregiver. The children live in the parent’s home for the majority of the time. Absent an extenuating circumstance, the non-custodial parent is given regularly scheduled visitations with the children.
    • Shared Physical Custody – Under this arrangement, the two parents share physical custody of the child or children equally. This can occur in a number of ways. If the parents live in close proximity, the children may live with one parent for a week and the other parent the next week. This may also result in a schedule where the children spend every weekend and the entire summer with one parent. With shared physical custody, both parents are custodial parents and primary caregivers.
  • Legal Custody – Issues such as schooling and medical treatments must be made, even after divorce. This decision determines which parent will make the major decisions in the child’s life. There are also two types of legal custody:
    • Shared Legal Custody – The parents agree to make major decisions together. However, even in this scenario, one parent is usually given the deciding “vote” in case a mutually agreeable decision is not reached. This is the most common form of legal custody in divorce matters
    • Sole Legal Custody – One parent makes all major life decisions for the child. No input from the other parent is required, but many custody arrangements include language encouraging the sole legal guardian to solicit input from the other parent.

Preparing for Mediation

Even though mediation is designed to alleviate some of the pressures of a court proceeding, it can still cause some stress, if you do not go into it with the right mindset. The Livestrong organization provides divorcing parties with several tips in preparation for a custody mediation.

  • Come ready to listen – Enter the mediation with a willingness to listen to your spouse, as well as the mediator. You and your spouse may not communicate well, so this may prove difficult. Trust in your mediator and know that you will receive an opportunity to talk, but your communication is much more productive if you have truly listened to the concerns of your spouse.
  • Consider your child’s needs over your own – Custody determinations are about the best interest of the child, not the parents. Be prepared to put your personal feelings to the side in consideration of your child’s needs.
  • Keep an open mind – Mediation is about compromise. Be willing to consider solutions that may require you to step outside of your comfort zone.

If you and your spouse want to mediate the custody of your children, contact the Law Office of Martin Murphy LLC at (781) 285-8989 for a free consultation today. Offering mediation services and collaborative representation, the Law Office of Martin Murphy LLC stands apart from other divorce attorneys.

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Celebrity Divorce Raises Questions About Prenuptial Agreements

Law Books

Another celebrity divorce scandal is in the newspapers. This time, the controversy involves comedian and talk show host Sherri Shepherd and her husband of nearly three years. According to the Los Angeles Times, the major areas of contention concern the enforcement of a prenuptial agreement. The agreement reportedly states that Shepherd’s ex-husband will receive a one-time payment of $60,000 based on the length of their marriage. The agreement excludes the granting of any alimony or maintenance payments. Reports also state that the agreement awards custody of any children born from the marriage to Shepherd. The parties are reportedly expecting a baby in July, with the assistance of a surrogate.

According to the article, while Shepherd is asking the court to uphold the prenuptial agreement, her husband is asking the court to throw it out based on allegations of fraud. He is asking for alimony, custody of the unborn child and child support. Adding more challenges to the situation is the fact that Shepherd reportedly filed for divorce in the state of New York, where the couple resided for the last three years. Meanwhile her husband filed a separation agreement in California, where he recently relocated. It has not yet been determined which state will hear the case, but there are residency requirements in each jurisdiction.

Prenuptial Agreements in Massachusetts

In the state of Massachusetts, prenuptial agreements are also called antenuptial agreements. These are collaborative agreements that couples create prior to the marriage. They commonly address how the couple will separate property in case of divorce. As in the Shepherd case, prenuptial agreements may also include custody determinations and decisions about spousal maintenance. The Massachusetts divorce statute only requires that it is in writing. However, through various rulings in prenuptial cases, the courts have created other guidelines for consideration.

Couples must enter into prenuptial agreements with full disclosure. Each party must provide the other with complete and accurate information about their individual financial situations, including assets and debts. The court also ruled that the prenuptial agreement must prove fair and reasonable at the time of execution. However, this does not necessary mean that all distributions must be fair and equitable. The courts give couples wide discretion when creating the terms of an agreements Their usage of “fair and equitable” means that a financially disadvantaged spouse cannot be “stripped of substantially all martial interest,” as stated by the court in the divorce case DeMatteo vs. DeMatteo. Under this determination, an unfair prenuptial agreement is not automatically invalid.

As in the Shepherd case, when one spouse contests the provisions of a prenuptial agreement, the court must decide whether to uphold it. However, before putting the decision in the hands of a judge, couples still have the opportunity to come together and mediate alterations to the agreement that satisfy both spouses. This is best done with the assistance of a mediator, who serves as a neutral third party.

The Law Office of Martin Murphy LLC can assist you and your spouse in the mediation of a contested prenuptial agreement. Call the office today at (781)285-8989 for a consultation.

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Deciding Who Pays the Student Loan Debts

Divorce is not only the separation of relationship, it is also the separation of financial resources and responsibilities. A recent article in The Wall Street Journal discusses the issue of student loan debt and who is responsible for it after the divorce. According to the article, a spouse who incurs educational debts prior to marriage generally remains solely responsible for those loans. It is a misconception to assume that a new spouse takes on the responsibility for these prior debts, as they do not have any liability for the loan.

Complications arise when the debts are incurred after marriage. If one or both spouses decide to take out college loans during the marriage, responsibility for the loans can vary depending on the jurisdiction and which spouse benefitted from the advance in education. Divorce courts are generally granted wide discretion in determining how to divide assets and debts. In considering student loans, the judge will look at several elements. The financial status of each spouse following the divorce may be considered. If one party will earn a substantially higher income, that person may have to provide financial support to the other party for assistance in repaying education debts. However, depending on the property rules in the marital state, the judge may split the debts in half regardless of the individual financial situations.

Further complicating matters, some jurisdictions classify professional degrees earned during as marital property. This can result in the degree earner having to compensate the other spouse for supporting their pursuit of higher education. This compensation is for the sacrifices that are made in support of the education, and may include child care, maintaining the home or taking on a part time job to supplement the family income. In these cases, the court’s rationale is that certain actions should not go without adequate recompense.

These student loan issues are more pressing among recent and current college students. As stated in the Wall Street Journal article, “College students who took out loans and earned bachelor’s degrees in 2012 graduated with an average $29,400 in educational debt, according to the Institute for College Access and Success.” The number increases substantially for those graduating with advanced degrees.

Marital Division of Debt in Massachusetts

Massachusetts is an equitable distribution state, where the judge is allowed discretion in determining how to divide marital assets and debts. In long marriages, absent findings of misconduct, the judge is likely to make a 50/50 split, placing both spouses on equal financial footing. In shorter marriages, the court generally tries to place each spouse in a financial situation that is similar to what they maintained prior to the the union.

Some spouses choose to avoid a determination by the judge. Instead, they utilize mediation and collaborative methods to settle the financial issues of the divorce. In this process, the spouses voluntarily work with a neutral third party to come to a mutually acceptable agreement. In general, this agreement is included in the divorce decree, eliminating the need for a divorce judge to make decisions about your personal matters.

If you and your spouse are considering divorce, contact the Law Office of Martin Murphy LLC for a collaborative divorce agreement that includes college debt payments. Call the office today at (781)285-8989 for a consultation.

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Who Will Pay for College?

College Graduation

The well being of children is a major issue of concern during a divorce proceeding. Parties are often at odds over custody, visitation and child support for minor children. Another common issue though, is the matter of determining who takes on the financial responsibilities of a college aged child, one who is too old for custody disputes, but too young for independence. According to an article in Forbes Magazine, answering this question can be a challenging and complex process, further complicated by emotions and ill-feelings between the spouses. The potential for conflict can undermine the the importance of a child’s college education, making mediation a highly useful tool for settling this question.

In most states, child support obligations end when the child reaches the age of majority, which generally occurs between the ages of 18 and 21. This varies in some jurisdictions, depending on when the child finishes high school. Unless there are outstanding arrears due, payments to the custodial parent end, leaving non-custodial parents with no further financial obligations to the child. But, as anyone with a college student knows, the financial obligation of parenting is far from over when a child turns 18. Most college students cannot pursue their educations without some level of support from a parent.

What You Should Know

According to the Forbes article, there are several important issues that a divorcing parent must remember:

  • Parents are not legally obligated to pay for college, unless ordered by the court. There are no laws requiring either parent to pay college tuition or provide financial assistance to the college student in furtherance of his or her studies. Many divorcing parents are surprised to learn that their former spouse is not automatically forced to contribute to a child’s college education. It understandably seems unfair to the custodial parent, as well as the child, but this one of the harsh realities of divorce.

  • In Massachusetts, a judge can order a parent to pay for college. The court may look at various factors in making a determination, including the custody of all children and the income of each spouse. Debts and any previous payment arrangements may also be considered. If the judge makes a ruling about payment, it becomes a court order. The parent is required to pay and noncompliance is punishable by the courts.

  • A divorce settlement agreement is the best tool for addressing college tuition payments. No one can always predict what a judge will decide when presented with a divorce issue. For this reason, it is preferable for the parties to sit down together and mediate a mutually beneficial agreement about college tuition payments. A signed settlement agreement can also become an enforceable court order, once it is accepted by the judge.

Your child’s education is of great importance and its consideration deserves a serious, collaborative effort by both parties. There are no set rules for the settlement agreement. A couple can tailor the tuition payments in any way that is mutually comfortable. It can entail a lump sum payment in advance or a monthly payment obligation, similar to child support.

The Law Office of Martin Murphy LLC can assist you and your spouse in creating a collaborative separation agreement that includes college tuition payment terms. Call the office today at (781)285-8989 for a consultation.

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