Articles Posted in Family Law

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On a motion for special findings for Special immigrant juvenile status (SIJ), the judge shall make such findings without regard to the ultimate merits or purpose of the juvenile’s application. The issue presented in these consolidated appeals was whether a judge may decline to make special findings based on an assessment of the likely merits of a movant’s application for SIJ status or on the movant’s motivation for seeking SIJ status. Here, an eight-year-old undocumented immigrant for Guatemala and a nineteen-year-old undocumented immigrant from El Salvador filed motions seeking the request special findings for SIJ status. The probate and family court judge implicitly determined that neither child would be entitled to SIJ based on her interpretation of 8 U.S.C. 1101(a)(27)(J) and declined to make special findings. The Supreme Judicial Court reversed and remanded the cases to the probate and family court for further fact finding, holding that the judge erred in these cases by declining to make special findings as to all three prongs of the special findings analysis. View "in re Guardianship of Penate" on Justia Law

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For reasons set forth in its decision issued today in Van Arsdale v. Van Arsdale, 477 Mass. __ (2017), the Supreme Judicial Court held that the durational limits of the Alimony Reform Act of 2011 are constitutional. In 2014, Husband sought to modify his alimony obligation established in an alimony agreement, claiming a material change of circumstances. The judge agreed with Husband that modification was warranted. The judge also applied the Act’s durational limits to the agreement and ordered that Husband’s alimony obligation would terminate in 2020. The Supreme Judicial Court affirmed, holding that the trial judge did not abuse her discretion concluding that Wife failed to prove that deviation beyond the Act’s duration limits was required in the interests of justice. View "Popp v. Popp" on Justia Law

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The application of the durational limits of the Alimony Reform Act of 2011 to certain alimony agreements that predate the Act is not unconstitutionally retroactive. Here, William Van Arsdale filed a complaint for modification in 2015 seeking to terminate his alimony obligation. The probate and family court terminated William’s obligation to pay Susan Van Arsdale alimony because the Act’s relevant durational limit had been exceeded and Susan had not shown that deviation from them was necessary. The Supreme Judicial Court affirmed, holding (1) the application of the Act’s duration limits to the alimony agreement between William and Susan was not unconstitutionally retroactive; and (2) the probate and family court judge did not abuse her discretion when she declined to deviate from the durational limits in this case. View "Van Arsdale v. Van Arsdale" on Justia Law

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In 2005, a few weeks after Child was born, Child's Grandmother was appointed as Child’s permanent guardian and has remained so ever since. Mother filed this removal proceeding challenging the guardianship arrangement. In 2016, Child, through counsel, filed a motion to appoint counsel for her guardian. The motion was denied. The Supreme Judicial Court remanded the case to the probate and family court for further proceedings, holding (1) a guardian who has a de facto parent relationship with her ward does not have a liberty interest in that relationship such that she has a procedural due process right to counsel; but (2) a probate and family court judge may, in the exercise of his sound discretion, grant a motion requesting counsel for a guardian in a removal proceeding where the judge concludes that doing so would materially assist in determining the best interests of the child. View "In re Guardianship of K.N." on Justia Law

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This certified questions in this case arose out of divorce proceedings pending in Connecticut between Wife and Husband, who was the beneficiary of a Massachusetts irrevocable trust. The Connecticut Supreme Court certified three questions to the Supreme Judicial Court concerning the authority of a trustee to distribute substantially all of the assets of an irrevocable trust into another trust. The Supreme Judicial Court did not answer the second question but answered the remaining questions as follows: (1) under Massachusetts law, the terms of the Paul John Ferri, Jr. Trust (1983 Trust) empowered its trustees to distribute substantially all of its assets to the Declaration of Trust for Paul John Ferri, Jr.; and (2) under Massachusetts law, a court, in interpreting whether the 1983 Trust’s settlor intended to permit decanting to another trust, should consider an affidavit of the settler offered to establish what he intended when he created the 1983 Trust. View "Ferri v. Powell-Ferri" on Justia Law

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This case concerned the arrival in Massachusetts of four minor siblings from a Nepalese refugee camp through a minor refugee program. The children’s parents subsequently arrived, but had very limited contact with the children after their arrival. The Department of Children and Families petitioned the probate and family court to free the children for adoption by terminating parental rights. The mother moved to deny the petition. The judge denied the motion and reported the matter to the appeals court, asking whether the Code of Federal Regulations allows the Department to petition for termination of parental rights under the circumstances of this case. The Supreme Judicial Court affirmed the judge’s denial of the mother’s motion to deny the Department’s petition, holding that the Code of Federal Regulations allows the Department to proceed to seek a termination of parental rights where unaccompanied refugee minors are present in the United States pursuant to the minor refugee program and the parents arrive in the United States but make no attempt to reunite with their children. View "In re Adoption of Yadira" on Justia Law

Posted in: Family Law

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During the divorce proceedings of Husband and Wife, Wife did not pursue her claim for alimony. Four years after the divorce judgment, Wife sought and obtained an alimony award. Both parties appealed. On appeal, both parties agreed that the judge erred by commencing the durational limit of alimony on the date of the first temporary alimony payment but disagreed on the appropriate commencement date. The Supreme Judicial Court remanded the case with instructions to reevaluate the alimony judgment, holding (1) under the circumstances, the durational limit of general term alimony under Mass. Gen. Laws ch. 208, 49(b) starts to run on the date that the alimony was awarded, not on the date of the divorce judgment or on the date temporary alimony was awarded; (2) the income earned from overtime pay must be considered in making an initial alimony award determination under Mass. Gen. Laws ch. 208, 34, regardless of whether that determination is made before or after the divorce judgment; and (3) where a judge awards alimony under section 34, the judge must specifically address the issue of health insurance coverage for the recipient spouse. View "Snow v. Snow" on Justia Law

Posted in: Family Law

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Clifford George and Jacquelyn George divorced in 2002. In 2013, Clifford filed a complaint seeking to modify his alimony obligation based on Mass. Gen. Laws ch. 208, 49(b), part of the Alimony Reform Act, which became effective nearly ten years after the parties’ divorce. Section 49(b) provides that general term alimony for certain marriages shall not continue for longer than seventy percent of the number of months of the marriage. A judge can deviate from the durational limit where doing so is required in the interests of justice, and the Act provides a schedule for when complaints for modification based on the new durational limits can be brought for alimony obligations that predated the effective date of the Act. The probate and family court judge denied Clifford’s complaint for modification, finding that deviation beyond the durational limits of the Act was warranted. The Supreme Judicial Court affirmed on other grounds, holding that Clifford’s complaint was filed prematurely. View "George v. George" on Justia Law

Posted in: Family Law

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Karen Partanen and Julie Gallagher were in a committed, nonmarital relationship for twelve years. Using in vitro fertilization and with Partanen’s full participation and consent, Gallagher fave birth the two children. The parties jointly raised the children until their separation. Partanen subsequently filed this action to establish full legal parentage pursuant to Mass. Gen. Laws ch. 209C, 6(a)(4). Gallagher filed a motion to dismiss the complaint for failure to state a claim. A judge of the probate and family court allowed the motion, concluding that Partanen could not be deemed a presumed parent under Mass. Gen. Laws ch. 209C, 6(a)(4) because she was not the children’s biological parent. The Supreme Judicial Court reversed, holding (1) a person may establish herself as a child’s presumptive parent under the statute in the absence of a biological relationship with the child; and (2) the assertions in Partanen’s complaint were sufficient to state a claim of parentage under the statute. Remanded. View "Partanen v. Gallagher" on Justia Law

Posted in: Family Law

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As part of a judgment of divorce, the probate and family court judge awarded Wife sixty percent of Husband’s interest in the present value of a discretionary spendthrift trust. Husband appealed, arguing that the judge abused her discretion by including the trust in the marital estate. The Appeals Court affirmed. The Supreme Judicial Court vacated the order dividing Husband’s interest in the trust, holding that Husband’s interest in the trust was so speculative as to constitute nothing more than an expectancy, and therefore, it was not assignable to the marital estate. Remanded. View "Pfannenstiehl v. Pfannenstiehl" on Justia Law

Posted in: Family Law