Fields and Dennis » Massachusetts Family Law

The Vineyard, Valuation, and Present Divisions

Attorney Jonathan Fields — Thu, 03 Nov 2011 14:51:00 +0000

After a trial, a Probate and Family Law Court entered a divorce judgment (1) valuing the husband’s 25% interest in a Martha’s Vineyard property at 25% of the market value of the property and (2) awarding a present interest in that property to the wife. The Appeals Court reversed.

On the issue of valuation, the appellate court noted that, while there was evidence of the market value of the entire Martha’s Vineyard property, there was no evidence as to the husband’s 25% interest – simply valuing it at 25% of market value was without basis.

Further, since the Court acknowledged that the husband’s interest was unlikely to be sold and unlikely to generate income for him, ordering the husband to make a present payment to his wife for $360,000 is “plainly wrong and excessive.” While the law strongly favors present payments to “if, as, and when” payments, the law also recognizes that where a present division would cause an undue hardship to a party, it is inappropriate. Elliott v. Elliott, 2011 Mass.App.Unpub. LEXIS 992 (September 6, 2011)

Counting Parenting Time (Even When the Kids are Sleeping)

Attorney Jonathan Fields — Wed, 08 Sep 2010 21:32:21 +0000

In trying to equalize a parenting schedule, do you count “sleep time” and “school time” or only “awake time”? In a modification action, a Probate and Family Court judge changed the parenting schedule without finding a change in circumstances on the theory that the percentage of “awake time” (time that the “children were not at school, camp, or awake”) spent with each parent was roughly equivalent to the previous schedule. The Appeals Court reversed, noting that the law has not “neatly divided custodial parenthood into waking, sleeping, and schooling categories. Nor should it. Disregarding sleep or school time ignores that children get sick, have nightmares, and otherwise require their parent’s assistance at unexpected times.” Parents are always “on call,” the Appeals Court continued: “[t]he responsibilities of a parent do not end when a child is asleep, at school or day care, or otherwise outside of the parent’s presence.” Katzman v. Healy, 77 Mass.App.Ct. 589

Massachusetts Divorce

Attorney Jonathan Fields — Wed, 24 Mar 2010 22:02:19 +0000

What if one party wants a divorce and the other does not?

Contact us: If you are considering divorce or your spouse has filed for divorce in Massachusetts, please contact the Boston metro divorce lawyers at Fields and Dennis for a confidential consultation.

The Boston divorce lawyers and family law attorneys at the law firm of Fields and Dennis serve the Greater Boston region including Allston, Arlington, Boston, Brighton, Brookline, Chestnut Hill, Concord, Dedham, Dover, Lexington, Natick, Needham, Newton, Waltham, Watertown, Wayland, Wellesley, Weston, Westwood, and all Massachusetts.

Automatic Restraining Order

Attorney Jonathan Fields — Mon, 15 Feb 2010 12:51:44 +0000

During the pendency of a divorce action, the Barnstable Probate and Family Court found that the wife’s restatement of her revocable living trust so as to longer provide the husband with a life estate in the marital home was not a violation of the automatic restraining order, Rule 411. Central to the holding was that title to the home was not conveyed or transferred – and that the asset was not placed outside of the Court’s reach for purposes of equitable distribution. The restatement only affected Husband’s expectancy of a future interest which does not implicate Rule 411. To those who had wondered whether changing a will violated Rule 411, this case provides good ammunition that it does not. Darden v. Darden (Lawyers Weekly No. 15-001-09) (October 15, 2009) (published in Lawyers Weekly February 15, 2010).

The Greater Boston metro family law lawyers and estate planning attorneys at the Wellesley, MA law firm of Fields and Dennis serve the Greater Boston region including Allston, Arlington, Boston, Brighton, Brookline, Chestnut Hill, Concord, Dedham, Dover, Lexington, Natick, Needham, Newton, Waltham, Watertown, Wayland, Wellesley, Weston, Westwood, and all Massachusetts.

Retained Earnings in a Sub-S Corporation

Attorney Jonathan Fields — Sun, 01 Nov 2009 22:32:12 +0000

The treatment of Sub-S retained earnings that pass-through to the parent-shareholder’s tax return has long vexed mediators and lawyers in support cases. When calculating support, do we include the income which is taxable to the recipient but undistributed to him ? In a case of first impression, the Supreme Judicial Court has weighed in with some useful guidance. Courts must now determine, on a case-by-case basis, “what portion (if any) of that pass-through income realistically and fairly is or should be deemed available to the shareholder for purposes of paying child support.” Courts must (1) consider “a shareholder’s level of corporate distributions;” (2) “evaluate the legitimate business interests justifying retaining corporate earnings;” (3) “weigh affirmative evidence of attempts to shield income by means of retained earnings . . . In that regard, the corporation’s history of retained earnings and distributions may be relevant.” J.S. v. C.C., 454 Mass. 652 (9/10/09).The Greater Boston metro family law lawyers and estate planning attorneys at the Wellesley, MA law firm of Fields and Dennis serve the Greater Boston region including Allston, Arlington, Boston, Brighton, Brookline, Chestnut Hill, Concord, Dedham, Dover, Lexington, Natick, Needham, Newton, Waltham, Watertown, Wayland, Wellesley, Weston, Westwood, and all Massachusetts.

Contempt for Anticipatory Breach

Attorney Jonathan Fields — Sun, 01 Nov 2009 19:27:56 +0000

Timing is everything. Mother could not be held in contempt for threatening not to allow the children to visit father for Christmas, according to the Appeals Court. Rejecting the father’s claim of “anticipatory breach,” the Appeals Court made clear that a contempt judgment cannot enter until “after the time for the mother’s performance had come and gone.” Pederson v. Klare, 74 Mass.App.Ct. 692 (July 23, 2009).

Child Who Becomes Parent Not Emancipated

Attorney Jonathan Fields — Sun, 01 Nov 2009 19:25:56 +0000

An unmarried child does not become emancipated as a matter of law by giving birth, the Appeals Court held in a case of first impression. The trial court had granted summary judgment for the father, holding that the child was emancipated because “she has a child, receives child support [for him], and has a family of her own.” The Appeals Court pointed out that there were disputed facts that made such a judgment inappropriate – chief among them, whether the child was a full-time student and whether the child was still principally dependent on her mother for support. In other words: for questions about emancipation, look to the statute, G.L. c.208 §28. LaBrecque v. Parsons, 74 Mass.App.Ct. 766 (August 4, 2009).The Greater Boston metro family law lawyers and estate planning attorneys at the Wellesley, MA law firm of Fields and Dennis serve the Greater Boston region including Allston, Arlington, Boston, Brighton, Brookline, Chestnut Hill, Concord, Dedham, Dover, Lexington, Natick, Needham, Newton, Waltham, Watertown, Wayland, Wellesley, Weston, Westwood, and all Massachusetts.

Wellesley, MA Family Law Lawyer & Mediator

Attorney Jonathan Fields — Sun, 20 Sep 2009 23:44:53 +0000

Wellesley, MA family law lawyer and mediator, Attorney Hugh Ferguson brings a wealth of human services experience to the firm. Along with his law credentials, Mr. Ferguson is also a Licensed Mental Health Counselor, and has been involved in hundreds of multi-faceted family dispute situations over the years.

With law offices in Wellesley, MA, the estate planning law firm of Fields and Dennis server the Greater Boston region including Allston, Arlington, Boston, Brighton, Brookline, Chestnut Hill, Concord, Dedham, Dover, Lexington, Natick, Needham, Newton, Waltham, Watertown, Wayland, Wellesley, Weston, Westwood, and all Massachusetts.

Self-Employment Income for Child Support Purposes

Attorney Jonathan Fields — Mon, 06 Jul 2009 19:52:21 +0000

A self-employed father brought a modification action seeking a reduction in child support. In calculating support, the Probate Court deducted from his gross income amounts for pension, profit sharing, and taxes. The Appeals Court vacated the support award. Gross income for child-support purposes, the Court noted, is not necessarily equivalent to a parent’s taxable income. In determining self-employment income, “a judge must determine whether claimed business deductions are reasonable and necessary to the production of income, without regard to whether those deductions” are appropriate for income-tax purposes. Although the current Guidelines did not apply in this case, the Court observed that these Guidelines now explicitly address self-employment, where the prior Guidelines did not. Specifically, the current Guidelines urge self-employment income to be “carefully reviewed [in order] to determine the appropriate level of gross income . . . [which] in many cases . . . will differ from a determination of business income for tax purposes.” Guidelines I-C (2009). Whelan v. Whelan, 74 Mass.App.Ct. 616 (July 6, 2009).

College Expenses Must be “Reasonable”

Attorney Jonathan Fields — Wed, 03 Jun 2009 19:49:42 +0000

A merged provision in a separation agreement purportedly required each parent to pay one-half of college education expenses. Under the agreement, mother had physical custody and the parties had shared legal custody of their daughter. Years later, the daughter, without input from the father, enrolled at a private university where the cost of her first year, after grants, was $34,000. Mother looked to father for $17,000, father refused to pay, and mother brought a contempt action. The Probate Court held the father responsible for $7,800 — finding that the school was financially “out of reach” for the father. On mother’s appeal, the appellate court construed the agreement to require each party to pay half of the “reasonable” college expenses, implying a limiting condition not explicit in the agreement. Further, in remanding the case to the Probate Court for a determination of “reasonable college expenses,” the Appeals Court set forth several factors for the court to consider; among them, financial resources, cost, programs at the school, and the child’s scholastic aptitude. Also relevant, according to the Court, is “the extent to which [a party] . . . may have been excluded from the college decision-making process.” The court would also consider the extent to which a parent has “sat on his or her right to intervene . . . until the college selection process has been completed.” Perhaps most interesting in this case was the road not taken. The Appeals Court could have held college expenses at the level of a public university to be presumptively reasonable. The court, however, did not. Mandel v. Mandel, 74 Mass.App.Ct. 348 (June 3, 2009).The Greater Boston metro family law lawyers and estate planning attorneys at the Wellesley, MA law firm of Fields and Dennis serve the Greater Boston region including Allston, Arlington, Boston, Brighton, Brookline, Chestnut Hill, Concord, Dedham, Dover, Lexington, Natick, Needham, Newton, Waltham, Watertown, Wayland, Wellesley, Weston, Westwood, and all Massachusetts.