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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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In the Washington Court of Appeals’ recent case, Marriage of Cheng (denominated “unpublished” as in our Appeals Court Rule 1:28) the court set out an interesting marker for double counting analysis with closely held businesses that are valued by income methodologies: if it is a business with expectations for income growth, awarding alimony (they call it “maintenance”) from its future earnings is not a “double recovery” or, as we call it “double count” or “double dip”. The husband in Cheng ran a consulting business with 2013 net income to the owner of over $900,000.00. Both experts valued the practice by capitalizing the “excess earnings” over the owner’s ...
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I need to find out about the criminal history about a Chilean citizern in his home country and in other countries. What is the best way to do this?
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"I just want it to be over with." It's a phrase that most experienced mediators have heard fairly often. It's almost always heard in private caucus, to be concealed from the other side, but not infrequently we hear it in both rooms. The parties are stuck and in agreement only on the shared desire to make the case go away. And so what is a mediator to do? Obviously, we have a number of tools in the mediation tool box to deal with impasse, including use of brackets to move the parties closer, or a "mediator's proposal. If none of those work, there is a hybrid procedure called "Med/Arb," the process by which a mediator (by agreement of the parties) switches hats ...
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[ Preface : We do not accept parenting coordinator assignments, but as divorce mediators, we do address parenting coordination in agreements from time to time, with clients. Our observations follows the order of appearance in the rule and not any editorial priority.] 1. No review process for binding PC decisions : Rule (1)(e) asserts that a PC appointment does not divest a court of continuing jurisdiction over child matters even where the parties have agreed to [PC] binding decision-making authority... But, Rule 1-17 provides no special limitation on the scope of issues on which an agreed PC may make binding decisions. More surprisingly, there is no requirement ...
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I recently moderated the Second Annual Cybersecurity and Healthcare panel discussion, produced by HITECH Answers , with some all-star panelists: Mac McMillan, Lee Barrett, Bridget Wahlstrom and Iliana Peters. We discussed a range of current issues, and prognosticated about the future. Check out the video, below. Heres the introduction that I offered to set the stage for our conversation: It seems that almost every day we read news of a new significant breach, a new ransomware attack, a new settlement with the HHS Office of Civil Rights . There are also other areas of concern for those of us who are employed by or who represent health care providers ...
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The Appeals Courts recent Ludwig v. Lamee-Ludwig approaches the intersection of unvested stock options and double counting, colloquially known as double dipping, in divorce litigation. Relying on the Supreme Judicial Courts (SJC) Bacanti v. Morton, they got it right. But, was the SJC precedent correctly decided? It is worth revisiting. In Baccanti, the SJC addressed the question of unvested stock options at divorce, concluding that options granted during marriage but to be vested thereafter may be treated as marital property by the trial court. As we have discussed here before, may is plainly a word that grants discretion, meaning that the grantee is permitted, ...
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From the time that I started practicing law others have told me do act in a particular way or do things differently using the argument that's how everybody else does it. In most instances this advice was accompanied by an explanation based on law, facts, or logic. In many instances I accepted this advice and changed my behavior. If a logical argument exists to do things in a better way then I support the better way. In many instances the advice could be summed up as the difference between how things are taught in school and how they are done in the real world. In a number of instances other lawyers have presented arguments to do something differently ...
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