Monday, April 16, 2012 The Family Trust: Protecting Your Children's Inheritence
A simple family trust is a great tool for making sure the assets your children could possibly inherit are distributed to your children according to your wishes. By using a trust, you decide who will hold and manage the assets your children inherit. You can put restraints on when and how distributions are made. Read more . . .Thursday, March 22, 2012 Tax Alert: Same-Sex Couples Should Demand Federal Adoption Credit
As individuals and families throughout the country begin to prepare and file tax returns for 2011, tax experts seem to agree that same-sex couples with children may be ignoring a significant tax benefit -- the federal adoption credit. Read more . . .Friday, February 24, 2012 'Til Death Do Us Part: State Residency Requirements and the Gay Divorce Dilemma
Background. Since Massachusetts legally recognized the right of same-sex couples to marry in 2004, tens of thousands of couples from around Massachusetts and around the country have tied the knot here in the Commonwealth. As we know, the status of marriage provides countless benefits to gay and straight couples alike in areas ranging from inheritance and property rights, governmental benefits and privileges, to child custody and parental rights, just to name a few. But one of the most important (and often overlooked) benefits of same-sex marriage is actually same-sex divorce. Divorce provides both parties in a relationship the benefits of an orderly division of property, assets and liabilities, and promotes the fair and equitable treatment of both spouses in the event of a breakup.
While many same-sex couples have remained here in Massachusetts, some married gay couples have either returned to their home in another state, or moved out-of-state to pursue employment or other opportunities. If you were married here in Massachusetts and moved your family to another state, you may have left one very important thing behind: your marriage!
Our office is contacted increasingly often by out-of-state couples who were married in Massachusetts and who now want to obtain a same-sex divorce. In many cases, both spouses are in complete agreement and ready to cooperate in order to obtain a divorce. Their question to me: Can we file for divorce in Massachusetts? The answer: Probably not.
Massachusetts Case Law Concerning the "Residency Requirement". This dilemma recently played itself out in the case of Francesca Cerutti-O'Brien v. Donna-Marie Cerutti-O'Brien. Francesca and Donna-Marie were married in Truro, Massachusetts, in November, 2006. At the time of their marriage, Francesca was a shop-owner and resident of Massachusetts, and was making routine trips to be with her partner, Donna-Marie, in Florida. Less than one month after the marriage, the couple bought a home together in Florida, with plans to open up a shop in Florida and spend summers in Massachusetts together. Despite marital counseling, the marriage quickly soured and, according to court papers, suffered an irretrievable breakdown in Florida on June 19, 2007. Francesca filed for divorce here in Massachusetts on June 27, 2007.
On the eve of their divorce trial, Donna-Marie moved to dismiss Francesca's divorce complaint on the basis that the Massachusetts Courts could not grant a divorce to the couple because neither of them was domiciled here in Massachusetts. The Court agreed and dismissed the divorce. Francesca appealed.
On review, the Appeals Court affirmed the Probate and Family Court's dismissal of Francesca's complaint for divorce. Under Massachusetts Family Law, the Probate and Family Court can only hear divorce cases in which the grounds for divorce occurred in another state if: (1) the spouses once lived in Mass, AND one of the spouses resides in Mass at the time the complaint is filed, OR (2) at least one of the spouses has resided in Massachusetts for at least one year prior to filing. After all, if the grounds for divorce occurred in Florida, and the parties reside in Florida, then Florida is the most appropriate venue for the divorce, right? Not necessarily!
The Dilemma for Married Same-Sex Couples. The dilemma for many married same-sex couples is that their state of domicile will not grant them a divorce because it will not recognize their marriage. After all, one of the prerequisites for obtaining a divorce is proving that you are married in the first place. In a majority of states across the country, same-sex couples will not be able to establish the existence of a valid marriage. And as many couples have discovered, the state that granted them a marriage now lacks the power to grant them a divorce on account of the residency requirement.
Frustrated yet? Consider this: every time you re-enter Massachusetts, or any of the growing number of states or nations that recognize a Massachusetts gay marriage, you may be considered married in that state for purposes of inheritance, property ownership, medical decision-making, taxes, employment, military eligibility, etc.
Until each and every state recognizes gay marriage, or will at least agrees to grant a divorce to married same-sex couples within its borders, this dilemma represents another undue and heavy burden on LGBT couples and families. I strongly recommend that same-sex couples who are thinking of becoming married here in Massachusetts sit down with an attorney who focuses in LGBT legal issues, and discuss the ramifications of obtaining a marriage here in Massachusetts with plans to reside outside the Commonwealth, whether a prenuptial agreement might be enforceable and provide a proper framework for dissolution of your relationship in a hostile state, or whether and how you might meet the Commonwealth's residency requirement for divorce.
Wednesday, January 04, 2012 Lesbian Custody Battle: Florida Court Orders Birth Mother to Share Custody with Genetic Mother
As reported by the Orlando Sentinal, the 5th District Florida Court of Appeals has ruled that a birth mother must share custody of the child that was conceived with her lesbian partner's eggs, and that Florida' s laws relating to egg donation were unconstitutional as applied to the two women.
By way of background, the case involves a same-sex lesbian couple who had been in a committed relationship for 11 years, and who decided to conceive and to have a child together. After learning that one of the women, a 39-year-old law-enforcement officer, was infertile, it was decided that the other woman, then 34 and also a law-enforcement officer, would donate her egg to be fertilized. The fertilized egg was then implanted in her partner's womb, and a baby girl was born the first week of 2004.
Three and a half years later, and following the separation of the two women, the birth mother disappeared with the child, leaving the country without telling her former partner where they had gone. Eventually the egg-donor mom tracked them down in Queensland, Australia.
The egg-donor/genetic mother brought a petition under Florida law asking the court to, among other things, declare that she was the legal mother of the child, grant her custody of the child, and order a corrected birth certificate identifying her as the parent. Section 742.14 of Florida law - concerning the donation of eggs, sperm, or preembryos - reads in relevant part:
The donor of any egg, sperm, or preembryo, other than the commissioning couple or a father who has executed a preplanned adoption agreement [... ], shall relinquish all maternal or paternal rights and obligations with respect to the donation or the resulting children.
Applying existing Florida law, the trial court judge DENIED the genetic mother's requests for parental recognition, writing:
Same-sex partners do not meet the definition of commissioning couple. There really is no protection for [Appellant] under Florida law because she could not have adopted this child to prevent this current set of circumstances. I do not agree with the current state of the law, but I must uphold it. I believe the law is not caught up with science nor the state of same-sex marriages. I do think that is on the horizon.
The trial court judge acknowledged that family planning options were limited to the lesbian couple when they decided to have and raise a child together, including the option to get married and to establish parenthood by adoption. The trial court judge wrote presciently, "If you appeal this, I hope I'm wrong." The genetic mother appealed.
On appeal, the 5th District Court of Appeals in Florida did indeed reverse the lower court's decision, holding that Florida's existing interpretation and application of Section 742.14 to the genetic mother was unlawful and violated her rights under the Florida and United States constitutions.
In reaching its decision, the appeals court brushed aside the birth mother's argument that the genetic mother was a "donor" under Section 742.14, and therefore had relinquished her parental rights. After examining the factual record and noting that the statute did not specifically define "donor" , the judge wrote:
Based on the uncontradicted facts, [the genetic mother] would not be a donor under this definition because she did not intend to give her ova away. Rather, she always intended to be a mother to the child born from her ova and was a mother to the child for several years after its birth. from her ova and was a mother to the child for several years after its birth.
The appeals court also disregarded the birth mother's argument that Florida's laws prohibiting adoption by same-sex couples barred recognition of parenthood by the genetic mother, stating:
[W]e do not discern any legislative intent that the prohibitions of that statute apply to deprive either woman of parental rights to a child conceived through the reproductive process employed here, and we can find no prohibition to lesbian women utilizing that process to conceive a child.
In its opinion, the 5th District Appeals Judge requested that the Florida Supreme Court decide a narrow constitutional question: whether a woman in a lesbian relationship who gives her egg to her partner in order to have a child give up her parental rights to the child.
The Judge also sent the case back down to the trial court to make an appropriate order of custody, visitation, and support, but not before making an important philosophical comment on the court's role in parenting cases:
Parental rights, which include the love and affection an individual has for his or her child, transcend the relationship between two consenting adults, and we see nothing in this record that makes either [birth mother] or [genetic mother] an exception that places those rights in one to the exclusion of the other. It is unknown what caused these two women to cross the proverbial line between love and hate, but that is a matter between [birth mother] or [genetic mother]. Their separation does not dissolve the parental rights of either woman to the child, nor does it dissolve the love and affection either has for the child.
Read the appellate opinion of Judge Sawaya in the case of T.M.H v. D.M.T. in its entirety here: http://www.5dca.org/Opinions/Opin2011/121911/09-3559.op.pdf
Thursday, December 29, 2011 District of Columbia Considers "Same-Sex Divorce" Bill
As reported by the Washington Post, District of Columbia council member Phil Mendelson has introduced a bill with the support of 13 other council members that would allow same-sex couples who were married in the District and later moved away to obtain a divorce without meeting the District's six-month residency requirement. The "Civil Marriage Dissolution Equality Amendment Act of 2011" was introduced in October, 2011, and has yet to be voted on.
The importance of divorce should not be underestimated. While marriage provides countless benefits to gay and straight couples alike, divorce provides both parties in a relationship with the protections and benefits of an orderly division of property, assets, and debts, and promotes the fair and equitable treatment of both spouses.
Most states have residency requirements which attempt to prevent divorcing couples from 'shopping around' for the most favorable place to dissolve their marriage. These residency requirements encourage divorcing couples to litigate their disputes where they actually live. But unlike opposite-sex couples, married same-sex couples can only divorce in one of the handful of states that recognize their marriage. This creates an unintended hardship on married same-sex couples, who are denied the right to obtain a divorce in their state of residency and by the state that granted their marriage in the first place.
Many states do not have legal mechanisms for same-sex divorce, leaving divorcing couples who married in the District but now live elsewhere in a bind. Washington-based family law attorney Sebastian Krop said that for many couples wishing to divorce, returning to the District to wait out the residency requirement isn’t an option.
Massachusetts, which recognized the right of same-sex couples to marry in 2004, has a one year residency requirement for couples who wish to divorce. Our office frequently gets calls from married couples throughout the country who are unable to obtain a divorce in their state of residency, and who now seek to return to the place of their marriage to obtain a divorce. Most are unwilling or financially unable to uproot their lives and return to Massachusetts to meet the state's one year residency requirement.
From state to state, same-sex divorce laws are a patchwork or nonexistent. For instance, a couple who married in the District but are separated in Virginia — a state that does not recognize same-sex marriage — would not meet residency requirements for divorce in the District.
Robin Maril, legislative council for administrative advocacy for the Human Rights Campaign, said that many early versions of same-sex marriage legislation didn’t provide for divorce. An easier process to complete divorce should be added, she said.
Until each and every state recognizes same-sex marriage, this dilemma represents another undue and heavy burden on LGBT couples and their families. I propose that the Massachusetts legislature modify Massachusetts General Laws Chapter 208 Sections 4 and 5 to allow same-sex couples who were married here in Massachusetts, and find themselves barred from obtaining a divorce in their current state of residency, to obtain a divorce here in Massachusetts.
Until such a change occurs, same-sex couples who are thinking of becoming married here in Massachusetts should sit down with an attorney who focuses in LGBT legal issues, including LGBT family law, and discuss the ramifications of obtaining a marriage here in Massachusetts with plans to reside outside the Commonwealth.
Read the full text of the proposed Bill here: Civil Marriage Dissolution Equality Amendment Act of 2011.
Tuesday, December 13, 2011 Downloadable Brochure: Co-Parent Adoption, A Guide for Same-Sex Parents in Massachusetts
 Vaughn-Martel Law has released a brief downloadable brochure entitled: Co-Parent Adoption, A Guide for Same-Sex Parents in Massachusetts.
Generally, Adoption refers to the legal process of creating a legal parent-child relationship where previously one did not exist. Co-Parent Adoption (also called "Second-Parent Adoptions and similar to Step-Parent Adoption) refers to the joint adoption of a child by two parents, one of whom is already biologically or legally related to the child. The brochure briefly answers some basic questions like, "Who Needs Co-Parent Adoption", "Is a Home Study Required", and "Do We Need to Terminate Our Sperm or Egg Donor's Rights".
The Co-Parent Adoption process has been used by same-sex parents throughout Massachusetts to establish a legal and binding parent-child relationship in a non-biological parent. Even married couples who are both listed as presumptive parents on a birth certificate in Massachusetts should file for adoption to ensure that their legal parentage will be recognized in states that are hostile to same-sex relationships.
To determine whether a Co-Parent Adoption is right for you and your family, download our our free informational brochure, and contact one of the reproductive law attorneys at Vaughn-Martel Law. We're always happy to answer any questions you might have.
Monday, December 05, 2011 Get Out Your Shovel! Property Owners and the Legal Duty to Remove Snow and Ice!
Winter is quickly approaching, and Massachusetts property owners may have a legal duty to clear more snow and ice this year than in the past. The Supreme Judicial Court recently abolished the distinction made between “natural” and “unnatural” accumulations of snow and ice as it relates to the liability of Massachusetts property owners. In light of the Court’s ruling, it is important that every property owner review his or her snow and ice removal procedures in order to avoid liability and to minimize the risk of harm to others.
For nearly a century prior to the 2010 case of Papadapoulos v. Target Corporation, a property owner was only legally responsible for injuries caused by unnatural, or man-made, accumulations of snow and ice on his or her property. The long-held reasoning for such a distinction was that a property owner was only responsible for injuries caused by defects existing on her property, and that natural snow and ice did not constitute a per se defective condition. Under this framework, a property owner was not liable for injuries caused by naturally-occurring accumulations of snow and ice.
The Supreme Judicial Court’s decision in Papadapoulos altered the traditional “natural v. unnatural” paradigm by holding that an owner has a duty to keep her property reasonably safe for all lawful visitors, regardless of the source of the danger. Following Papadapoulos, a property owner’s duty with respect to snow and ice is the same as any other potentially dangerous conditions, i.e., to “act as a reasonable person under all of the circumstances including the likelihood of injury to others, the probable seriousness of such injuries, and the burden of reducing or avoiding the risk.” In other words, what constitutes reasonable snow and ice removal may vary depending on the type of property, amount of foot traffic, the magnitude of the risk, and burden of removal.
In reaching its decision, the Court quoted a similar opinion from the Rhode Island Supreme Court, which stated that,
We believe that today a landlord, armed with an ample supply of salt, sand, scrapers, shovels, and perhaps a snow blower, can acquit himself quite admirably as he takes to the common passageways to do battle with the fallen snow, the sun-melted snow now turned to ice, or the frozen rain.
The Court also pointed out that the obligations imposed by its decision were in some respects less demanding than some regulatory requirements and city ordinances. As one example, Boston property owners have only a three hour window after a snowfall ends within which to remove the snow from their property.
It is important this snow season to seek legal representation in the event a visitor or tenant suffers a slip-and-fall on your property, or if you are injured as the result of a property owner’s unreasonable failure to remove snow and ice from her property. Property owners may want to review agreements with snow removal companies for effective indemnity and hold-harmless provisions, as well as review insurance coverage, in light of the change in law. To learn more about how the Supreme Judicial Court’s decision in Papadapoulos may affect you, speak with a personal injury attorney at Vaughn-Martel Law and speak with us today!
Wednesday, November 09, 2011 Automobile Accident Victims: DOs and DO NOTs
Automobile accidents occur every hour of every day in the Greater Boston area. In a matter of seconds, a car accident victim’s life can be dramatically changed as the result of another person’s negligence or failure to pay attention. In addition to focusing on physical and emotional recovery, a victim must contend with a wrecked vehicle, lost wages, and mounting medical bills.
Dealing with insurance companies after a car accident can be daunting and confusing. It is often next to impossible to get the other driver's liability insurance company to deal with you fairly. The other driver’s insurance company’s only goal is to pay you as little as possible as soon after the accident as possible. The following DOs and DO NOTs are meant as a general guide to victims of accidents, but nothing will take the place of an experienced and aggressive legal team.
DO: Seek Appropriate Medical Treatment
Getting medical care and attending to your recovery should be your first priority. All too often clients will be barred recovery or compensation for very real and painful physical or emotional injuries because they decided to 'tough it out' and refuse medical treatment. The insurance company should be held at bay until the victim has reached a final medical end-result. If you did not see a doctor or specialist regarding a certain injury or pain, the insurance company will assume you have not been harmed.
DO NOT: Forget That You Have a Contract with Your Insurer
This means your insurer has a legal responsibility to provide the coverage promised in your policy. If you are injured in a collision with a stolen vehicle, a hit-and-run accident, or by an underinsured motorist, your own insurer may be required to compensate you for your injuries. You should speak with an attorney, as there are strict "notice" requirements and timing issues which could bar your recovery.
DO: Notify Your Insurance Agent As Soon As You Are Able
You must notify your insurance agent immediately of any incident, and you should exercise your right to deny permission for your conversations to be recorded. However, you should NOT give any recorded or written statements to another party's insurer until you have spoken with an attorney. Once you have retained counsel, you should instruct all parties to communicate directly with counsel.
DO: Take and Keep Detailed Notes
You should take and keep detailed notes of all conversations with insurance company representatives and get the names, phone numbers, and job titles of people with whom you speak. It is also a good idea to keep detailed personal written notes about your injuries, treatment, medications, any pain or discomfort you experience, missed wages, and any changes in your daily routine as a result of the accident. By the time your claim is ready for settlement or is filed in court as a lawsuit, it is difficult to remember or recall the specific pain, trauma, or discomfort experienced months or years earlier.
DO NOT: Sign Waivers or Releases of Any Kind Until You Have Spoken with an Attorney
Do not accept any checks that say "final payment" unless you are truly ready to do so. Often times, missed work and difficult financial circumstances following an accident can make a low and premature settlement offer more attractive to a client. Oftentimes, the paperwork accompanying a settlement check will release the negligent driver from any and all liability or responsibility for your injuries. Consult an attorney before accepting or signing any offers or releases.
DO: Take Pictures
Take pictures of the scene of the accident or wreckage, and even your own injuries if possible.
If you have been in an accident caused by the carelessness or negligence of another person, contact one of the experienced personal injury attorneys at Vaughn-Martel Law.
Thursday, October 20, 2011 Vaughn-Martel Law's Jessica M. Walsh Invited to Sit on Human Rights & Sex Trafficking Film Forum Committee
Attorney Jessica Walsh has been invited to sit on the Boston Initiative to Advance Human Rights’ (BITAHR) 2012 Human Rights & Sex Trafficking Film Forum Committee. BITAHR launched Human Rights and Sex Trafficking: A Film Forum in 2010 to explore the use of film as an effective way to raise awareness and trigger action in combating commercial sexual exploitation of girls and women. The Forum considers the role of film in advancing women’s human rights and the many governmental and non-governmental organizations' efforts to combat sex trafficking. Jessica is honored to have the opportunity to be part of such a vital cause. For more information on BITAHR, and the 2012 Human Rights & Sex Trafficking Film Forum (to be held in January, 2012), please visit http://bitahr.org/index.html. To read more about Vaughn-Martel Law, or about Attorney Walsh, visit www.vaughnmartel.com.
Tuesday, October 11, 2011 A Defendant Facing Jail Time for Failure to Pay Child Support has No Right to Counsel, Supreme Court Says
In June of 2011, the Supreme Court issued a 5-4 opinion that changed the rules of contempt proceedings for failing to pay child support. In Turner v. Rogers, the court decided that the Due Process Clause of the 14th Amendment does not require states to provide a lawyer to defendants facing incarceration for failure to pay child support. In the Turner case, the court found that Mr. Turner, a South Carolina man behind in his child support payments, was not entitled to a lawyer; however, the court did find that his incarceration violated the Due Process Clause.
The Court cites three main considerations as to why provision of a lawyer is not required in child support proceedings. First, the determination of whether a defendant is able to pay the child support can be answered prior to providing a defendant with counsel. The court also considers that the person opposing the defendant is often not the government, but rather the other parent who is also unrepresented by counsel. Providing a lawyer to one parent but not the other parent has the potential to make the child support proceedings less fair. Lastly, there are adequate safeguards available to protect the defendant’s interests. Thorough financial assessment procedures, financial documentation forms, and notice to the defendant sufficiently protect him or her in answering the critical question of whether the defendant is able to pay.
In the Turner case, the court found that Due Process had been violated because, even though the state was not obligated to provide the defendant with a lawyer, the lower court did not provide any of the above-mentioned safeguards to make sure that the trial court had sufficiently examined the defendant’s ability to pay.
The Court’s decision essentially affirms the continued right of judges to throw a party in jail for failure to comply with an order to pay child support. At the same time, the Court is mandating that sufficient safeguards and practices be in place in order to comport with Due Process.
It is important to note the Supreme Court’s decision does have limitations. The court’s ruling may not apply to situations in which child support payment is owed to the state, where the government is likely to be represented by counsel. It also may not apply in an ‘unusually complex case’ where a defendant can only be competently represented if he has access to a lawyer.
Whether you are seeking an order of child support, or have found yourself in the position of being behind in child support payments, it is critically important to have competent representation. To determine if and how Turner may affect you, feel free to call us or send us an email, and as always, keep checking the blog for updates on pertinent legal news! |