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We introduce the subject that the Supreme Judicial Court (SJC) addressed in   Young v. Young   by examining the kinds of orders from which the case arose: variable or self-adjusting support orders. Here, we address the basics. What are self-adjusting support orders?   They are alimony orders expressed by a formula rather than a sum. The payor computes alimony periodically by applying a percentage to his or her defined income. Sometimes, different (usually declining) percentages apply to different tiers of income, and increasingly, thanks to M.G.L., ch, 208, § 53(b) (of the Alimony Reform Act (ARA) of 2011, eff. 3.1.12) the percentage(s) may apply to the ...
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With the long-awaited case Young v. Young, the Massachusetts Supreme Judicial Court (SJC) has revisited the important question of when may a trial court originate self-adjusting support orders, a subject that we have addressed here twice before. See,   http://levinedisputeresolution.com/docs/Variable-Support-orders-3-28-16.pdf   and   http://levinedisputeresolution.com/divorce-mediation-blog/need-and-variable-support-orders-they-are-not-mutually-exclusive . While the case does not address the situation where there is insufficient income to keep both parties living at the former marital standard of living, it does review and elaborate on existing precedent. ...
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With this month’s U.S. Senate passage of the Over-the-Counter Hearing Aid Act, pursuant to the Food and Drug Administration (FDA) Reauthorization Act of 2017 (S. 934; H.R. 2430), legislators validate what consumers have long acknowledged -- the increased frequency of hearing loss and its significant impact on an individual’s safety, health, and quality of life, including access to medical care. https://www.warren.senate.gov/files/documents/3_21_17_Hearing_Aids_Bill_Text.pdf Section 520 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360j) was amended, effective 8/18/17, to regulate OTC hearing aids and permit direct access by consumers without prescription ...
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NEW CHILD SUPPORT GUIDELINES BRING CHANGE TO PAYING FOR COLLEGE EXPENSES Posted on   August 23, 2017 The new Child Support Guidelines (Guidelines) include a new section to deal exclusively with college or other post-secondary educational expenses. While the Guidelines officially go into effect on September 15th, they are already being used by attorneys, mediators and others. At the outset, the Guidelines remind litigants that the divorce judge has discretion to order or not order a parent to contribute to college costs. In other words, it is not a given that a parent will be ordered to pay for all or part of college ...
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The Massachusetts Bar Association recently endorsed a set of “Civility Guidelines for Family Law Attorneys”. It is amazing to us that in 2017 this project should have been necessary, but we have no doubt of it; and the ten points are both simple and profound. Moreover, these tenets don’t just apply to the courtroom. They are equally applicable to the arbitration or mediation room, the four-way meeting, attorney correspondence, and the ongoing processing of every case, including negotiation. In truncated form the ten commandments of civility are: Dress appropriately. Be on time and prepared. Treat people with courtesy and respect. Wait your ...
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New Child Support Guidelines Pay Lower Support With More Parenting Time – No More Posted on August 8, 2017 By:  Anthony C. Adamopoulos The current “old” Child Support Guidelines provided a separate child support calculation where, for example, the father shared “financial responsibility and parenting time” of greater than one-third but less than fifty percent of the time. This usually meant that if, for example, the father was with his children more than one- third of their time he was going to pay less child support than the father who is with his children about a third of the time. This adjustment is dropped under the new Guidelines ...
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We have been following the saga of the Obama-era proposed regulations to tighten practices in valuing family-controlled businesses, which spent much of last year plus in public scrutiny and commentary. The proposed rules have been a lightning rod for valuation experts and family business representatives alike, since they would pretty much eradicate discounts, establish minimum valuations and increase federal tax receipts upon sales of these closely held-entities during lifetime, and upon death, for those fortunate few who qualify for estate tax liability. Now, courtesy of presidential Executive Order 13789 (April 21, 2017), the United States Treasury Department ...
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Recently, we attended the Massachusetts Bar Association’s inaugural Dispute Resolution Section symposium, and the annual AFCC meeting, each in Boston. Both programs featured extended discussions of mediation involving a “fourth party”, as in, the two parties, the mediator and technology. We expected the focus to be running   divorce mediations   with an absent party or two, attending virtually by Skype or FaceTime, or even the good old-fashioned speaker phone. Most of us have done a bit of this and addressed the limitations imposed by the lack of eye-to-eye contact and the sense that the person on the screen or behind the phone is actually checking his ...
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Five years and many appellate cases later, the Alimony Reform Act (eff. March 1, 2012) (“ARA”) now has some meat on its bones. The more we work with it, however, more scenarios emerge that we had not previously considered; and we wonder if the drafters did either. One aspect we have been pondering is how critical elements of the statute address the scenario where former spouses “trade places” after divorce. In other words, the parties’ earnings change inversely, sufficiently to make the initial alimony payor a putative payee. In an era of predominantly two earner (former) households, changes of relative fortunes are not only possible, but they are, in fact, ...
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Representative Markey of the 9th Bristol District has filed a bill to permit modification of a judgment on child care and custody matters only, without the need to file a new action. It contains provisions for a motion filing fee, preliminary hearing and discovery. The bill provides for evidentiary hearings, but only if requested by a party or set by the court as an exercise of discretion. Temporary orders may enter, mirroring the standards of M.G.L., ch. 208, §28. We wonder why this bill and why now? It dispenses with the due process requirement of a modification complaint and encourages expedited proceedings, but is that a good idea? Current practice requires ...
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Two aspects of the a recent “unreported” decision of a Massachusetts Appels Court panel, are worthy of note, and provide important cautions to judges, family law arbitrators and drafters, alike. Judicial restraint . We don’t recall ever seeing this phrase about the divorce court’s exercise of broad discretion before. In McClelland v. McClelland, the parties provided in their separation agreement that the husband would pay 75% of the children’s secondary school expense. In a later modification action, they agreed that each parent would pay 1/3 of college costs. In a second modification, neither party sought review of either education term, focusing ...
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Having private or public health insurance does not eliminate consumer medical debt because plan design, provider price variation, and patients who experience transitions in coverage, for example, also impinge on an individual’s ability to timely pay for medical care. In Massachusetts, the Special Commission on Provider Price Variation suggests that residents of the Commonwealth would benefit from improved strategic plans to combat unsustainable healthcare costs, to address price variation among providers, and to resolve existing market dynamics. See The Special Commission on Provider Price Variation, Price Variation Report (March 15, 2017). Available at: ...
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Access to healthcare insurance supports our local communities and Massachusetts’ infrastructure and economy. Health care is also prerequisite for residents to uphold productive lives, and it preserves individual liberties and happiness. Unmet healthcare needs, on the other hand, stigmatize impoverished and disadvantaged communities and undermine the functionality of a healthcare system by diverting dollars from preventive care providers to more costly episodic interventions. "To allow a serious illness to go untreated until it requires emergency hospitalization is to subject the sufferer to the danger of a substantial and irrevocable deterioration in his health. ...
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Our civil litigation system offers poor and middle class people little or no practical access to the courts to resolve disputes that have a huge impact on their lives. Dispute resolution services can and should be deployed to help address neighbor conflicts that make life almost unbearable for people who, as a practical matter, have nowhere to turn except to the police. We in the bar association should take a leading role in developing a delivery system to bring the many benefits of dispute resolution services to meet this pressing need. One enormous swath of the landscape of human relations and therefore conflict is occupied by the relationships ...
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Not a Shifting Alimony Presumption, under Van Ardsdale v. Van Ardsdale The crux of the Massachusetts Supreme Judicial Court’s (SJC) recent Van Ardsdale v. Van Ardsdale, is that the retroactive effect of durational limits under the Alimony Reform Act (eff. 3.1.12) (ARA) is constitutional because the imposition of these constraints is “merely” presumptive and, therefore, do not “attach new legal consequences to events completed before its enactment”. We do not question precedent. While its comparison of a sex offender’s right to contest registration requirement for adjudications that occurred before the registry legislation, in Doe, Sex Offender Registry ...
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In an unusual context, the Massachusetts Supreme Judicial Court recently answered questions put to it by the Connecticut Supreme Court about its view of whether the decanting of a divorce litigant’s trust assets to another trust, with spendthrift provisions, was permitted by Massachusetts law. The SJC concluded that the trustee’s maneuver, which likely placed the trust assets outside the equitable division reach of the non-beneficiary’s divorcing wife, respected the probable intent of the settlor, making the asset transfer permissible, even though under the original trust’s terms, the beneficiary-husband had the unfettered right to withdraw 75% of the trust ...
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At our Annual Dinner on May 4, seven attorneys and one law firm will receive Access to Justice Awards for their exemplary legal skills and service to the community. New this year, we invite you to hear the 2017 Access to Justice Award honorees’ inspiring stories in their own words on our MassBar Beat podcast. Honorees include Rebecca Jacobstein, Committee for Public Counsel Services (Defender Award); Kevin J. Curtin, Middlesex District Attorney’s Office (Prosecutor Award); Andrew Troop, Pillsbury Winthrop (Pro Bono Publico Award); Christopher Mirick, Harvest Power Inc. (Pro Bono Publico Award); Brian Flynn, Greater Boston Legal Services (Legal ...
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At least in Massachusetts, we now know two things: You shouldn’t send a bible to a judge before whom you are a litigant; and If you do, you should not expect him to rule in your favor before recusing himself. In the Appeals Court’s recent Lasher v. Lasher , a three –judge panel reversed a trial court judge who offered to entertain a motion to remove him from the case after he determined that a bible inscribed with his name sent to his lobby had been sent by the other party to the case. The non-gifting party took the judge up on his offer and sought recusal. The judge complied. But, before doing it, he denied the only other motion that was ...
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Over the last year, BV Wire , an excellent publication of Business Valuation Resources, LLC, has been chronicling the New Jersey trial of Wasniewski v. Walsh , in which three Superior Court judges addressed a shareholder withdrawal case, with serial appeals and remands. The issue presented is if the trial judge acted properly in applying a 15% discount for lack of marketability (“DLOM”) in setting the buyout of the withdrawing 50% shareholder, not because the interest difficult to sell, but rather to redress the plaintiff’s oppression of the shareholder-defendant. (New Jersey law apparently permits the application of a DLOM in fair value determination ...
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