Family Law


  • Topics presented

Introduction
Prenuptial Matters
An ante-nuptial agreement
Things that happen when one wants to get married
There are four types of impediments to a valid marriage
Annulments
Support and Property Rights
Legitimacy of Children
Effect of Marital or Family Relationship
Torts between spouses
Domestic abuse
Inheritance
Legitimacy of children after Marriage
Custody of minor children
Termination of Parental Rights
Adoption
Abortion
Separate Support
Defenses
Divorce
Proper venue for divorce
Grounds for divorce
Irretrievable Breakdown of marriage (No fault)
   Uncontested Procedure
   Contested Procedure
Defenses to grounds for Divorce
    Connivance
    Condonation
    Collusion
    Insanity
Rights during divorce and the effect of a final decree
The divorce decree
Redistribution of assets
Custody
Modification
Child support
Visitation rights
Full Faith and Credit

GOODRIDGE v. DEPARTMENT OF PUBLIC HEALTH SJC-08860 11-18-2003 


Introduction

Relationships have traditionally begun with people consenting to live together. Eventually this became marriage, not as we know it today. During the Roman Empire marriage was consentual. There were no ceremonies; however, a man at one time, took all the woman's property as his own. This lasted for centuries. Prior to Roman times, the bride's father gave his assets to the potential son-in-law. There was also a situation where a man would pay the father to marry the daughter.

There was no such thing as divorce initially. Later, when viewed consentually, this was possible until about 1979-80. Common law gave essentially everything to the husband. During Roman times, Romans has concubines, mistresses, concubines which were illegal. Since men ruled, it was socially acceptable, yet illegal. A great influence on law came from Roman Catholicism. The Protestant Church did not care how one was married. The Catholic Church insisted on banns, publication and witnesses. Obviously, there was no divorce. Eventually the Church's canon law became statutory law and now deals with what canon law once dealt with.

In England divorce came only by a parliamentary act, and usually only for adultery. It usually pertained only to men; wives could not divorce their husbands. Only four divorces were granted to women in the 1600s.

In the American colonies, a development of English common law, common law marriages did not exist as they do not also in most states today. None in Massachusetts, but allowed in RI and NH. The colonies The colonies added insanity, impotency, non-age (12-14) to consanguinity and affinity. When society moved West, migratory divorces evolved. This is not very applicable today. In the early nineteenth century, woman's lot improved. The Married Woman's Property Act was designed to place women on the same footing with men regarding contracts, income, suing and being sued. In the late 1960s, the US Supreme Court and legislatures passes legislation to eliminate all disability pertaining to women. In 1971 the Uniform Marriage and Divorce Act was enacted and adopted by most states; the statutes refer to an irretrievable marriage break down situation. It is a no-fault divorce law.

Prenuptial Matters

Of the many things that take place prior to marriage engagement is one. Usually the man gives an engagement ring. If there is a condition subsequent to the giving of the ring, e.g. a promise to marry, and if that condition never takes place because the woman calls off the engagement, then the man can redeem that ring in a court of equity.

1. If the man causes the breakup, he has no recourse, and the ring stays with the woman. If the ring is given on a holiday, e.g. Christmas, Valentine's Day or as a birthday present, then the ring stays with the girl whether there is a breakup or not.

2. An ante- or pre-nuptial agreement is a contract the parties make prior to getting married. This may deal with real or personal property. Any property possessed by a man or woman remains his or hers and does not pass on. The contract must have a sufficient description of each person's property, so that a creditor or either party can distinguish the different properties. Thus there has to be a schedule of property for each party which is attached to the contract. The contract with the attached schedule must be recorded in the registry of deeds either before the marriage or within 90 days after the ceremony. It is recorded in the husband's district or in the wife's district if the husband is not a Massachusetts resident at the time of record. If the contract is not recorded, it shall be void except between the parties, their heirs and their representatives. Creditors see no contract and it does not exist as far as they are concerned. In Massachusetts, if there is any inference about divorce in the contract, it will be declared unacceptable.

If there is real property on the schedules, the contract must be registered in the registry of deeds in the county where the property is located and filed within 90 days after the marriage.

Pre-nuptial agreement can set forth property and alimony rights in the event there is a divorce; the courts will enforce these agreements. Such an agreement cannot abolish the right of a spouse to be supported during the marriage. An agreement also cannot remove the obligation of a parent to support his or her minor children. If there is language in the agreement that denies the rights of the parties, and these rights have been given by statutory law, they will probably be excluded; e.g. a wife can opt not to be in a will.

The parties themselves must have mutual trust, confidence in each other, good faith, and be sincere in all their dealings. The court takes these into consideration when given a chance to review the agreement. If they are not in place the court will void the agreement; e.g., there was no fair and reasonable agreement at the time of execution. Agreements may be amended by the parties during their lifetimes, and any gifts given to each other are not barred by any clause in the agreement.

An ante-nuptial agreement:

1. cannot alter marital rights and obligations that would otherwise be imposed on the parties by law.

2. the contract must meet the requirements of a contract: in writing (SoF)

3. consideration is the mutual promises to each other

4. agreement must have full disclosure of both parties of all their assets. If not all assets are listed, fraud is being committed.

5. provisions can be inserted which dispose of property at each others death

6. most courts do permit the total settlement of property, and this becomes part of the agreement if there is a divorce in the future

7. each party has independent counsel; however if each party wants the same counsel, this is permitted if a signed is received and on file.

Things that happen when one wants to get married:

In Massachusetts a breach of contract to marry does not constitute an injury or a wrong recognized by law and no action, suit or proceeding shall be maintained. Any action for deceit committed with a breach of a promise to marry is also not actionable.

Any contract rights for the breach of a contract to marry that is entered into in another state will not be enforced in Massachusetts. Any promise of a man to support a woman that is made in consideration of her promise to divorce her husband is also unenforceable as against public policy.

In Massachusetts a public ceremony is required to have a valid marriage. Common law marriages are not recognized in Massachusetts, but if they are contracted in another state where it is legal (e.g., RI) and the persons move to a state where so recognized, then Massachusetts will recognize that common law marriage. However, if the parties move to RI, for example, to circumvent Massachusetts law, and that is their intent, the marriage will not be recognized in Massachusetts.

Upon the death of one of the partners, the state decides on the validity. There are certain lay people that can conduct a marriage ceremony (besides priests, rabbis, etc.); a justice of the peace may also conduct a marriage ceremony and also a clerk of a town, city or a court in Massachusetts. In addition to Catholic, Protestant and Jewish, Massachusetts also recognizes rites in the following areas: Quakers, Baha'i, Ethical Cultural Society, Unitarian Universalist Association, Buddhists and Islamic. If a person to contract is not a Massachusetts resident, s/he must get secure permission from the Secretary of State in order to perform the ceremony.

The parties who intend to be married shall not less that three days before the marriage, jointly have a notice of their intention filed in the office of a clerk or registrar of any city or town in Massachusetts and must pay the fee for that notice. The three day period is computed with the inclusion of Sundays and holidays.

In the filing of the notice, the parties must state that there is no legal impediment for the upcoming marriage and must give that oath before a clerk of the city or town. Once the clerk is satisfied, s/he will issue the clerk's certificate, the marriage license, after three days of filing the notice. The marriage certificate is only good for sixty days. Before the clerk issues the license, the parties must take a test for syphilis, and if the blood test is positive and the disease is incommunicable, both parties must be informed; this does not, however, prohibit the granting of a marriage license. If the disease is communicable, then no license is granted. There has been no change in the law regarding HIV testing; there must still be HIV testing.

The lack of authority of the official performing the ceremony, or an omission in filing the notice, does not render the marriage invalid if it is consummated and if one of the parties believes there has been a lawful marriage.

There are four types of impediments to a valid marriage:

1. age: by common law a female must be 12 years of age and a male 14 years or older to contract marriage. Any marriage in which either party is under age is void without a court judgment. Massachusetts does not have common law regarding male and female requirements. Massachusetts requires anyone under the age of 18 to receive approval from a probate or district judge before s/he can file for a marriage license. No cleric, minister or rabbi may solemnize a marriage without court approval.

2. consanguinity and affinity: With consanguinity, no man shall marry a woman that bears the following relationship: grandmother, mother, aunt, sister, niece, daughter and granddaughter. The equivalent is true for a woman.

With affinity, a man cannot marry: step-grandmother, step-mother, grandmother-in-law, mother-in-law, step-daughter, step-granddaughter or grand-daughter-in-law. The same applies equivalently for a woman.

Any marriage that is in violation of this statute (MGL 2071, 2) is void without a decree of divorce or any other legal action.

A party can marry a first cousin in Massachusetts by statute.

3. mental capacity: insane people, idiots and feeble-minded people are incapable of contracting marriage. When viewed as a contract, two people must be of sufficient age, have intention and knowledge of entering a contract. If a mentally retarded person is capable of understanding the contract aspects of marriage, s/he can contract marriage. If any of the above do in fact enter into a marriage, it can only be attacked by an annulment brought by a guardian. Any person under a conservatorship can marry if s/he understands the contract to be embraced.

4. prior marriage still in force: a person already married is incapable of entering into another valid marriage unless the spouse is dead or the previous marriage has been terminated by a divorce. Any second marriage, where one is still in force, is void if the marriage takes place during the nisi period. However, any subsequent marriage is void if there is still another marriage in effect, but will become valid after the impediment is removed if the following requirements are met:

a. at the time of the subsequent marriage, one of the parties believed that the other party's spouse was either dead or there was a valid divorce or there was no valid marriage.

b. after the subsequent marriage, the parties of the marriage live together as husband and wife.

c. they continue to live as husband and wife after the impediment is removed.

d. one of parties believes in good faith that s/he is still validly married at the time the impediment is removed.

All four requirements must be met.

This matter usually arises when and "unmarried" spouse dies and the surviving spouse seeks the inheritance still going to the legal spouse.

Prior marriage still in force: for example, H marries W1 in 1970. H marries W2 in 1975 while still married to W1. W2 has no knowledge of the first marriage. H and W2 live together as husband and wife but in 1978 W2 learns of the prior marriage. W1 dies in 1980. H and W2 continue to live together as husband and wife. After that time W2 believes she is validly married to H because of W1's death. There is a valid marriage even though there was an impediment during the time of the marriage. There must be good faith at the original time of the marriage and at the time the impediment is removed. Any knowledge by the second wife that is acquired about the first marriage subsequent to the date of the ceremony does not prevent the operation of the statute. Courts have defined good faith in this instance to mean "one of the parties honestly believes that this marriage is valid."

Any marriage which is valid where contracted will be valid in Massachusetts; e.g., Massachusetts will recognize a common law marriage that takes place in RI. If a person resides in Massachusetts and intends to continue to reside in Massachusetts and that person goes into another jurisdiction to get married, and if that marriage is invalid in Massachusetts, it will be recognized in Massachusetts.

"Residence" in the statute means domicile; there can be only one domicile, but a multiplicity of residences. Domicile is where one is currently attached, e.g. regarding taxes, driver's license, voting, schooling of children. Any marriage that is contracted in any other state that may be valid in that state and applies to brother-sister marriage or marriage of lineal descendants, will not be recognized in Massachusetts.

Annulments

If the validity of a marriage is doubted, either party may institute an action to annul the marriage or to affirm it. The judgment to nullify a marriage may be entered in Massachusetts even though the marriage is solemnized outside of Massachusetts with the proviso that the plaintiff was domiciled in Massachusetts when the action was commenced or that the plaintiff had resided in Massachusetts for 5 years preceding the commencement of the action.

A void marriage is one that is prohibited because of consanguinity or affinity, or the existence of a former marriage still in effect. A void marriage is treated as if it never existed. The void marriage may be collaterally attacked by any person in any proceeding. E.g., if a man marries a woman in Haiti, and she later acquires a divorce, and he files for an annulment, the court said that because he did not challenge the validity of the divorce, he was now estopped from challenging it during the annulment proceedings.

Voidable: to get an annulment, one must petition the court to declare the marriage void. The action must be brought by one of the parties of the alleged marriage, and any such action may not be maintained by the survivor after the death of the other party.

Grounds for annulment include mental incapacity (probably ascertained after the ceremony), duress, jest, and fraud which must go to the essence of the marriage contract. Courts speak of fraud as something that either prevents a party from entering a marital relationship or, having entered a marital relationship, would preclude the performance of customary and legal marital duties. For example, a woman marries a man solely for the purpose of becoming a married woman with the intention of leaving him "at the church door" after the ceremony and never seeing him again; or, a woman induces a man to marry her representing to him that she is chaste when in fact she is pregnant by another man. Here he must repudiate the woman as soon as he has knowledge of the situation. A woman cannot use the fact that the husband has had sexual relations with her before marriage to secure an annulment.

Support and Property Rights

A remarriage may be a change in circumstances that will justify a modification of an alimony decree that was granted from a former marriage, even though the second marriage is voidable for fraud and is then annulled. Most courts hold that an obligation of a husband to make alimony payments ends when the wife remarries. Most commonly, an agreement will not be adhered to by the court if it is unconscionable. Parties to a divorce who hold real estate as tenants by the entirety, and that marriage is subsequently annulled, the tenancy by the entirety is converted to a tenancy in common. Even though a tenancy in common, the court will apportion the amount of contribution made by each party.

Legitimacy of Children

Any issue of marriage in which the marriage is void because of consanguinity or affinity is deemed to be born out of wedlock. The issue of a marriage that is declared void because of non-age or insanity are legitimate children to the party that is capable of contracting the marriage and illegitimate to the other party. If the marriage is void due to a former marriage being in force, and one party who is capable of contracting a subsequent marriage fully believes that the other partner was free to marry, any issue of that subsequent marriage born prior to the time of the second marriage and when the second marriage was declared void, [the issue] is legitimate to the party that is capable of contracting the marriage.

If there is an annulment of a marriage, the court has the same power to make orders relating to the care, custody and maintenance of minor children as if it were a divorce. One of the most important things in a separation case is the care of children; courts do not wish such children to become wards of the state.

Effect of Marital or Family Relationship

Any conveyance of real property to a husband and wife creates a joint tenancy. If a tenancy by the entirety is desired, it must be stipulated in the deed. If there is a tenancy by the entirety created, the husband and wife are equally entitled to any rents, income, profits, and to the control, management and possession of the property. However, any conveyance made to a husband and wife prior to 1980 falls under common law. Under common law the husband had all the rights. Any property deeded prior to 1980 does not enjoy tenancy by the entirety and equality between the husband and wife. Each party has the right to one-half interest in the property. Thus it is not subject to the execution of a law suit if personal property. As long as a non-debtor spouse holds property, an election must be made to come under the 1980 law for property held before 1980; it only applies to the principal residence.

Usually the court may order the husband, as part of a temporary order, to vacate the marital home. The court cannot order him to vacate it permanently when the property is held as tenants by the entirety. However, there is a time when the court can so prohibit the husband [209A], an abuse situation by the husband of the wife.

Any transfers of real or personal property are valid is if they were sold to the other party. If a spouse transfers money or property to the other spouse without consideration, there is a rebuttable presumption that the transfer was a gift. Parties to marriage may contract with each other and sue each other, e.g. auto accident, any contract. A third party may recover at common law against the husband for necessaries that are furnished the wife if the husband fails to provide them. Necessaries are, e.g. food, clothing, housing.

The husband is also liable for the wife's reasonable medical expenses and funeral expenses, if the wife's estate is insufficient to do so. If there is a separate support decree, usually the husband is no longer liable for necessaries furnished the wife. A divorce is not necessary; a separation may suffice, and an agreement can be drawn up. A legal separation oftentimes costs as much as a divorce.

The wife is not liable for the husband’s debts, but under the statute, she is jointly liable with her husband on debts up to $100.00, for necessaries furnished to herself or her family provided she has property in excess of $2000.00. This statute is still in effect. The husband is not responsible or liable on any contracts made by the wife with third parties.

Either spouse may petition for a decree of separate support on the ground of non-support whether the parties are living together or not. Any spouse who without just cause deserts the other spouse and leaves that spouse without making reasonable provisions for that spouse’s support, or if the s/he unreasonably neglects or refuses to provide support and maintenance of that spouse whether living together or apart for justifiable cause, is guilty of a crime.

Generally, if there is an entry of a guilty plea or after a conviction, the defendant is put on probation. The court may also enter a modifiable order directing the defendant to pay a certain sum of the support of the spouse payable to his/her probation officer for a period not to exceed six years.

Clarification: "a person who does not support a spouse is guilty of a crime," i.e., probate has first to make a decision that there was non-support before the action proceeds further to criminal.

Torts between spouses

Massachusetts abolished interspousal immunity in actions for negligence, and this applies to all negligence actions. Now married couples can sue each other. Note that when suing a spouse, one is suing one’s own insurance company. This abolishing includes personal injury damages that were household accidents. However, interspousal immunity does not bar an action by a husband or wife against the other spouse for libel.

Massachusetts also abolished parent-child immunity in all negligently caused actions. [E.g., a child injured in an auto accident can now sue the parent-driver]

Causes of action for alienation of affection have been abolished. Now both husband and wife may sue a third party for the loss of consortium caused by the third party. Any recovery for the loss of consortium will not be reduced by the amount of contributory negligence on the part of the injured spouse.

Domestic abuse

If a pro se complaint is filed in any court that has venue over the plaintiff’s residence, there are remedies available for a person suffering abuse from a family or household member. These are:

1. ordering the defendant to refrain from abusing the plaintiff

2. ordering the defendant to vacate the household not to exceed one year

3. awarding the plaintiff temporary custody of a minor child

4. ordering the defendant to pay temporary support to the plaintiff and minor children if the defendant has a legal obligation to do so

5. ordering the defendant to pay compensatory damages for losses resulting from the abuse, e.g., medical or moving expenses, attorney fees

6. ordering the plaintiff’s address to be impounded [because all court records are public, the only way to conceal records is to impound. The plaintiff and attorney have no right to see the address]

Usually the plaintiff goes in for an ex parte, temporary order, i.e., without notice to the other party, then court gives five days to respond on the matter.

The statutes pertaining to domestic abuse specifically grants a police officer, who has reason to believe that a family or household member has been abused or is in danger of being abused, authority to remain in the home until the immediate danger of further abuse has passed.

Other matters dealing with family relationship

Inheritance

the surviving spouse takes one-half of the net probate estate if the other spouse dies intestate and is survived by issue and $200,000 plus one-half of the net probate estate over $200,000 if the deceased spouse is survived by kin but not issue.

If the entire estate of a deceased spouse will go the living spouse if there are no issue or kin (brothers, sisters, mother, father, aunt, uncle) the surviving spouse by filing an election within six months of the probating of the will may waive its provisions. If they waive the provisions of the will, they will take as follows:

1. if the deceased spouse is survived by issue, the survivor takes one-third of the net probate estate, but if the one-third exceeds $25,000 then the spouse only takes a life estate in anything over $25,000

2. if the deceased is survived by kin but no issue the spouse will get $25,000 outright and have a life estate in one-half of the net probate estate over $25,000

3. if the deceased spouse is survived by no kin or issue the surviving spouse gets $25,000 plus one-half of the net probate estate (the other half goes to the state if no heirs).

The waiver of the will has nothing to do with insurance payments nor any pension plans. These pass outside the probate estate.

In a criminal case, except one that involves child abuse, the witness spouse has the privilege of not testifying for the defendant spouse. This privilege may be claimed or waived only by the witness spouse. There has to be a marital relationship in order to have the privilege. Neither spouse may testify to private conversations with the other spouse except in an action on a contract made by one spouse with the other or in an action of non-support. This disqualification applies only to conversations, not to written communication

Legitimacy of children after Marriage

A child born out of wedlock whose parents have subsequently intermarried, and the father of the child has acknowledge the child, or if the alleged father has been adjudicated to be the father, then the child is legitimate. Two things must happen: (1) the child be born out of wedlock; and (2) the parents have to marry and the father must acknowledge the child or be adjudicated to be the father.

Any child born to or conceived by a woman while she is married is presumed to be the legitimate child of the husband and wife. For example, a woman is married to husband-1, a child is conceived, at the time of birth she was married to husband-2. Husband-1 is presumed to be the father, not husband-2. That is a presumption that may be rebutted if there are facts which prove beyond all reasonable doubt that the husband was not the father. Massachusetts statute 209(c) further creates the presumption that a man is the father of a child born within 300 days after the termination of the man’s marriage to the child’s mother or of a child born during or within the 300 days after an attempted invalid marriage to the child’s mother. Further presumptions of paternity are also created by the man receiving the child openly into a joint home shared with the child’s mother, also by the man’s consent of being named on the child’s birth certificate, or by the man’s voluntary written promise to support the child.

In a criminal prosecution for non-support of an illegitimate child, no greater degree of evidence may be required to prove that the alleged father is the parent of the child than is required to prove the same facts in a civil action.

Both parties are competent witnesses and may testify against each other regarding the parentage of the child, although neither one may be compelled to give evidence that would incriminate them. Any minor child is not barred from re-adjudicating the issue of paternity in a civil proceeding after the state has failed to prove paternity in a criminal trial. If the child brings the civil action, the state is foreclosed from re-litigating the issues and the defendant has no right to a jury trial in the second proceeding. Any child who is legitimate in the domicile of its birth is legitimate in Massachusetts. In addition, a child who is illegitimate in the state of its birth, may be considered legitimate in Massachusetts if the child would be legitimate under Massachusetts law.

The paternity of a child or children may be established by the registration of both parents of an acknowledging of the child or children which is filed with the probate court. If a man acknowledges that he is the father of an illegitimate child, he has the right to seek visitation rights (but this applies only if the woman is not married).

According to Massachusetts statutes blood grouping tests are only admissible in evidence only where there is a definite exclusion of the male as father. That is conclusive evidence on the issue of paternity. Usually, there can be a refusal to have a blood test, but if the court can show good cause, it may require it.

There is a Massachusetts statute (MGL 273 12A) that applies to tissue typing tests. The human leukocyte antigen (HLA) test has been accepted as a reliable method of proving paternity. However, there are two requirements to be met: (1) the probability of the alleged father’s paternity is shown to be 95% or greater; (2) that a proper foundation has been done establishing that proper testing procedures were employed in the case and that the expert witness who gives the evidence is properly qualified. Even if those results are admissible into evidence, they may be rebutted.

An illegitimate child who has been acknowledged by the alleged father may inherit from the intestate estate of the alleged father provided the father has openly, either orally or in writing, acknowledged his paternity. The proof the father must show has to be clear and convincing. Unless the illegitimate child is written into a will, s/he may not inherit; only legitimate children have rights under the statute.

A parent is responsible for the support of a child born out of wedlock until the child reaches age 18, or until age 21 if the child is domiciled with a parent and is principally dependent on the parent. Any parent of an illegitimate child (sic, also can be illegitimate to the mother) who neglects or refuses to contribute reasonably to the child’s support is guilty of a misdemeanor. A criminal prosecution for non-support is available against any parent who without just cause deserts his/her minor child or who fails to provide the necessary physical, educational, or moral care and guidance to the child. On the other hand, any person who is over the age of 18 and is possessed of sufficient means is guilty of a crime if s/he unreasonably neglects or refuses to provide for the support and maintenance of his/her parent when the parent through misfortune and without fault is destitute and unable by reason of old age, infirmity or illness to support themselves. This is the current law. MGL 273 20. A charge can be brought by Social Security, Medicaid, etc.

Custody of minor children

Parents of a minor child are entitled to the custody of that unless the Probate Court finds them to be unfit. Unfitness is defined such that the parents must be unsuitable, incompetent or not adapted to parenting. If a parent is deemed to be unfit as a parent, they lose all parental rights. The Probate Court cannot appoint a new guardian for a child without the court finding the children’s parents are unfit or the parentally appointed guardians are unsuitable. The parent continues to have the primary right to custody even when a child has been happily settled with a custodian (e.g., foster parent) for some time and does not wish to return to the parent.

The welfare of the children (20831) is an important factor in determining fitness of a parent. Parents may consent to other persons having custody, but the welfare of the child will determine that custody. If there is a separation or a divorce, in the absence of misconduct, both parents have equal rights to custody.

Termination of Parental Rights

The US Supreme Court (Santosky v. Cramer, (1982) 455) has held that permanent termination of parental rights must be based on a finding of parental unfitness proved by clear and convincing evidence. However, temporary removal of a child from parental custody will be allowed upon a finding of fact by a preponderance of the evidence. In Massachusetts the temporary removal could go to DSS; the child becomes a temporary ward. Permanent termination of parental rights must be sought in conjunction with a petition to adopt and a petition to dispense with the need for the consent of the parents. The standard of proof on this issue of parental unfitness is clear and convincing evidence. Here the parents are deemed unfit and someone wishes to adopt. No one can adopt a child without parental consent; the termination takes parents out of the picture.

Adoption

Any person of legal age (18 in Massachusetts; 21 in Massachusetts to drink) may petition the Probate Court to adopt another person that is younger than him/her except a brother, sister, spouse, aunt or uncle. A married minor may adopt the natural child of the other spouse. If married, the spouse of the adopting party must join the petition. The person adopted then becomes the adopted child of both (viz., including the child’s own mother).

When deciding whether to grant a petition for adoption, the decision must be based on a determination of the child’s best interest. In accordance with statutory law, the father of an illegitimate child who files a parental responsibility claim with the DSS has the right to adopt the child in preference to all others if (1) the mother places the child up for adoption, and (2) if the adoption is in the best interest of the child. Once an alleged father has acknowledged that he is the father of an illegitimate child, he has the right to petition the court for visitation rights.

If a child is over the age of 12, written consent to an adoption must be obtained from that child as well as from the lawful parents or from the other orally if the child is illegitimate. Any consent given by the mother prior to the fourth day after the birth of the child is void. She also cannot validly consent before the birth of the child. If she gives consent, that consent must be attested to and subscribed to before a notary and in the presence of two witnesses. If the adopting person is not a blood relative, a step-parent or nominated in the will of a deceased parent the DSS must approve the petition, and if the adoption is pending in the Probate Court, the court may make a final determination on an appeal or a denial by the DSS. The Probate Court has the final word.

Consent from the parent may be dispensed with if the child is over age 18, or if after a court hearing, the court finds the adoption of the child would be in his/her best interest after the court has considered the following: the ability, capacity, fitness and readiness of the child’s parents to assume parental responsibility. However, a petition to dispense with parental consent to an adoption cannot be granted when the Probate Court has not made an express finding as to the current fitness of the child’s natural parent even if the parent is incarcerated. After an adoption of a minor child under age 14, the DSS must make an investigation of the home of the adopting parents. During an adoption procedure the religious faith of the child may be considered by the court or requested by the natural or adopting parents. An indigent parent must be provided court-appointed counsel in an adoption petition.

Once the child is adopted, all the incidents of the parent-child relationship exist between the adoptive parent and the adopted child, and no parent-child relationship except for prohibitions against marriage, incest and cohabitation exists between the child and his/her natural parents.

An adopted child is not only the heir of his/her adoptive parents, but also of those from whom s/he could inherit if s/he were the natural child of his/her adoptive parents. The adopted child may also take his adoptive parents share under the ante-lapse statute. Once the child is adopted, that child is no longer the heir of his natural parents of their kin.

People under age 18 need permission to marry, have no right to earnings nor to be domiciled if away from parents and any married minor is liable in .... for necessities and may keep their earnings and can be domiciled away from their parents.

Parents are not vicarious liable for the torts of their children at common law, however, they are liable by statutory law for willful acts of the child up to $1000.00. A parent may be directly liable for allowing a child to use a dangerous instrument or for failing to restrain a child when the parents knew or should have known of the child's propensity for harmful conduct.

Abortion

Any statute that requires the consent of the husband of a married woman who seeks an abortion is unconstitutional. Any statute that prohibits a physician from performing an abortion until 24 hours after the pregnant woman signs an informed consent form is invalid, because there is no legitimate state interest that will be furthered by an arbitrary and inflexible waiting period. Massachusetts statute imposes a written, informed consent requirement on women who are minors. A state statute cannot require parental consent before an abortion can be performed on an unmarried minor. Any statutory requirement that a minor s parents be notified once they petition to obtain judicial approval of an abortion has been filed is unconstitutional if the minor is mature and independent. In each such case regarding a minor, the evaluation by a Superior Court judge will be on a case by case basis.

As amended, Massachusetts statute c. 112 12(s) requires that a physician obtain both the consent of the pregnant minor and that of her parents or guardian. If the minor is not married, and either her guardian refuses to consent, or the minor chooses not to seek the consent of her parents or guardian, the a Superior Court judge may after a hearing authorize a physician to perform the abortion if the judge determines that the woman is mature and capable of giving informed consent or, if the judge determines she is immature, he may still authorize a physician to perform the abortion if it would be in the best interest of the minor. Even if the judge finds the minor immature, he may still permit an abortion to be performed if he finds good reason.

If a minor is found to be sufficiently mature to make her own decisions whether to undergo an abortion, the judge has no authority to condition his approval of the abortion on the minor's willingness to submit to certain medical procedures or certain facilities that the court may prefer.

Separate Support

Either spouse may petition the Probate Court for a decree of separate support and the parties do not need to be living apart from each other if either of them brings a separate support action. The obligation of spouses to support each other can be amended by contract. There are two jurisdiction prerequisites to a separate support petition:

1. a requirement of domicile of either part to the physical presence of both parties in Massachusetts or such activity such as a marital relationship in Massachusetts so that the long-arm statute applies the parties do not need to have lived in Massachusetts as husband and wife nor is there a minimum requirement for residence.

2. if there has been a valid foreign divorce decree then the petition must be dismissed.

Grounds for separate support:

1. non-support: failure of a spouse to provide adequate support (available to either party).

2. desertion: a depriving of the physical presence of the spouse even if the spouse is providing support.

3. living apart for justifiable cause is conduct that is not sufficient to constitute a ground for divorce but will still justify a separate divorce decree. However, there must be some marital wrong.

Defenses

1. condonation is the forgiveness of the original party of a marital wrong. However, the failure of that party to live up to the terms of a conditional condonation revives that right.

2. a separation agreement which is fair, reasonable and free from fraud or coercion is valid and a bar to a separate support decree if it is being complied with. However, such an agreement does not bar the court from later modifying an agreement that is incorporated into a decree if the circumstances later change. As a separate contract, it is not modifiable by the Probate Court. If the court accepted the agreement within the decree (merged) then it is modifiable.

A separate support decree is designed to make temporary adjustments to the marital relationship while a cause for separation of the spouses exists. It is not a permanent solution. However, if the party whose wrong caused the separation removes that cause, s/he is entitled to have the court revoke the decree. A separate agreement is normally terminated by a valid divorce, releasing the husband from all support payments not due at the time of the divorce. If false statements are made regarding the marital assets, they can be a subject of equitable relief where the misrepresentations have caused the innocent spouse to be precluded. The support usually encompasses the following:

1. freedom from restraint, where each party is prohibited from imposing any restraint on the personal liberty of the other.

2. custody and maintenance of minor children: the welfare of the child is paramount when the court decides which parent should have custody. Usually when one has custody, the other has visitation rights which also can be supervised.

3. support issues considered by court: there is no right to a lump sum award from one spouse s property to provide for all future support of the other spouse. There are to be periodic payments. The following element must be looked at:

(1) net income, assets, earning ability of party filed against

(2) number and ages of the person to be supported

(3) the expenses that are incurred by the obligor and the persons supported for necessities and the usual standard of living for the person to be supported
(4) the assets and net earnings after child expenses of the persons to be supported

(5) the marriage or remarriage of any person being supported

(6) the capacity of the person being supported to work in conjunction with the caring of minor children

The failure to comply with a separate support decree is enforceable by contempt proceedings, and civil contempt is what is used to obtain compliance with the claimant s benefit and criminal contempt because it is punitive in nature is used to punish any attempt to interfere with the administration of justice.

If the obligor having knowledge of the court order fails to make support payments when his income is adequate, an inference beyond a reasonable doubt that the defendant intentionally disobeyed, the court order is warranted. However, this inference may be rebutted.

The property of one spouse may be attached to secure payment of support awards and wage assignment may be used when the obligor is more than 4 weeks in arrears.

Divorce

A marriage relationship exists from the time a valid marriage is contracted until it is terminated by death or a valid divorce. A Massachusetts divorce does not become operative until the entry of a final decree which is entered 90 days after a judgment nisi. In order to get a divorce, there must first be a valid marriage for the court to have jurisdiction; there must also be domicile for one of the parties.

In addition if the cause occurred outside of Massachusetts and the parties never lived in Massachusetts and one party was not living in Massachusetts when the out-of-state cause occurred, there then is a one year residency requirement before Massachusetts will take jurisdiction.

If those jurisdictional prerequisites are found to be missing after the divorce has been granted, the judgment may be attacked collaterally at a later date by a party who was not a party to the original divorce proceedings. Personal service on the defendant is not a jurisdictional prerequisite for the divorce action. If the address of the defendant is unknown then service may be made by publication (viz., newspaper or last place known to be his/her abode).

The Probate Court has in rem (real property) jurisdiction in a divorce action not only over the marriage status, but any property of the parties is in the court’s jurisdiction. Personal jurisdiction over a defendant is necessary to enter or enforce any decrees in personam including the entry of orders imposing continuing support obligations or the institution of contempt proceedings to enforce that order.

Parties have the right to govern their procedure under the Uniform Reciprocal Enforcement of Support Act.

Massachusetts has a long arm statute which gives the state personal jurisdiction over out of state residents who were legally married and maintain a marital domicile in the state for at least one of two years preceding commencement of an action. This personal jurisdiction would make the non-resident liable for a support order issued by Massachusetts courts. A Massachusetts support order can also be enforced by another state having personal jurisdiction over the defendant under the Uniform Reciprocal Enforcement of Support Act.

Proper venue for divorce

If the Probate and Family Courts are in the county where either of the parties lives, except if one of the parties still lives in the county where the parties last lived together as husband and wife, then the action must be brought in that court. However, the Probate Court may transfer the action to a county in which a party resides if the party can show hardship or inconvenience.

Grounds for divorce

1. Adultery. Because of the secrecy of adultery, circumstantial rather than direct evidence is used and the evidence has to be of an adulterous disposition plus the opportunity to commit adultery. That would be sufficient proof if it would lead a reasonable and just person to the conclusion of guilt.

2. Impotency is the inability to perform a sexual act. It is also grounds for annulment if the fact was concealed before the marriage. The defense of condonation does not apply to a divorce on the grounds of impotency, sterility or the inability to conceive children.

3. Desertion. In order to prove desertion, the plaintiff must prove that the defendant left voluntarily, without justification or counsel of the plaintiff, with the intent not to return and that desertion and lack of cohabitation occurred for at least one year prior to the filing of the complaint. Desertion is still a valid ground even if the defendant temporarily returns home for the purpose of defeating the action. A divorce for desertion may be granted against the spouse whose wrongful conduct caused the separation even though it was the plaintiff who withdrew from the home where the parties last lived together.

The filing by the plaintiff of an action for separate support or a complaint for divorce on some other ground raises a presumption that the plaintiff consented to the defendant's living apart, and if this presumption is not rebutted no divorce for desertion will be granted.

4. Gross and continual intoxication (also includes drugs) is that which occurs three or four times a year for a long period of time (viz., years). The use must be voluntary, gross and confirmed and continue until the complaint is filed. The use of drugs that are prescribed does not constitute proscribed intoxication.

Irretrievable Breakdown of marriage (No fault)

Uncontested Procedure

If the parties agree, there must be a petition filed for divorce signed  by both parties or their attorneys together with a sworn affidavit that an irretrievable breakdown of the marriage exists along with a notarized separation agreement.  The Probate Court will hold a hearing to determine if the irretrievable breakdown does exist and whether a separation agreement properly provides for custody, support, alimony, and disposition of marital property. The judge in making this determination applies the same principles used in a contested case except that s/he does not consider “fault.”   If the court approves, it is  merged into the court decree but if both parties agree, it may remain  as an independent contract.  30 days after approval by the court and without any further action of parties, a judgment nisi is entered which becomes final 90 days thereafter.  Even if parties agree, the judge cannot reduce nisi period.  No Fault divorce takes 4 months from the date of the court hearing. These grounds must be corroborated by a witness other than the plaintiff.

Contested Procedure

This is where a complaint for divorce that alleges irretrievable breakdown may be filed without an agreement that such a breakdown exists and without a separation agreement. No earlier than 6 months after a complaint is filed a court may issue a judgment nisi if it finds that a continuing irretrievable breakdown has existed from the time of the filing up to the time of the hearing. As part of the judgment nisi the judge will make orders for custody, support, alimony, and disposition of the marital property.   In this particular part of the statute fault enters an alimony order since the conduct of the parties during the marriage is one of the factors considered under the statute. Due to the six month period before decree nisi is entered plus the 90 day nisi period, it takes about 9 months for a divorce to become final when there is no agreement.

Defenses to grounds for Divorce

All defenses must be affirmatively pleaded in order to be used at trial. Recrimination is not a defense to a divorce action. They cannot be used for irretrievable breakdown only the first 7 above. Because it is a no fault statute

Connivance

This is conduct of  the plaintiff that facilitates commission of adultery by the defendant.

Condonation

This is where a spouse who forgives marital misconduct by the other spouse may not thereafter raise such misconduct as a ground for divorce. This defense requires that the nondefending spouse with knowledge of the marital misconduct either expressly or impliedly forgive the other spouse and restore that spouse to full marital rights.  The element is the intent to forgive. This is a question of fact. It can also be contingent/conditional on the spouse not resuming the misconduct. If conditional, the injured spouse may use the initial misconduct for grounds of divorce where the spouse forgiveness has be violated.

Collusion

This is where two spouses agree to commit marital offense in order to obtain a divorce. (not used anymore because of no-fault)

Insanity

An insane person is not responsible for his or her actions; acts committed, while the person is insane will not give rise to grounds for divorce.

Rights during divorce and the effect of a final decree

While an action for divorce is pending, the court may make temporary orders for custody and support. The court also has the right to require either husband or wife to vacate the marital home for not more than 90 days. Even if the court denies the action for divorce, it may find that the plaintiff is living apart for justifiable cause and make orders for custody and support.

A divorce does not become final until 90 days after the judge’s making a decision that the divorce be granted, i.e. the nisi period. The trial judge is the only one who has the right to grant a judgment nisi. 90 days later, the judgment automatically becomes final if it is not revoked or stayed.  Once the judgment nisi has been entered, the action cannot be dismissed or discontinued by either party unilaterally unless there is a hearing with notice given to both parties and the trial court allows a dismissal or discontinuance.

Once the judgment nisi has been entered, neither spouse who may be dissatisfied with the financial awards may not during that 90 day period seek to dismiss the action. If either one of the parties dies during the nisi period, the divorce never becomes final and the survivor has all the rights of a surviving spouse. If they resume marital relations after the judgment nisi, that resumption may be used by one of the spouses during the nisi period to prevent the judgment from becoming final. If one of the parties files an appeal from the judgment nisi, it cannot be for money, but for the dissolving of the marriage.

Once the divorce becomes final, either party may marry again [each other]. Once the parties are divorced they lose all rights to an intestate inheritance and the right to waive the will of the other spouse. Any real property held by tenants by the entirety is changed to tenancy in common unless the parties at the time of their divorce intend a joint tenancy to continue.

Unless a will specifically provides otherwise, a divorce or an annulment has the following effects upon a will in existence at the time of the divorce or annulment:

1. it revokes any disposition in favor of the former spouse
2. it revokes any appointment of property or creation of a power of appointment in favor of the donor spouse.
3. it revokes the appointment of the former spouse as an executor/trix, conservator or guardian.

Any property that is prevented from passing to the former spouse will pass as if the former spouse predeceased the testator. A divorce does not affect designations of beneficiaries on life insurance policies or pensions, and if the parties remarry [each other] it revives all the provisions in favor of the former spouse.

Divorce Decree

In addition to terminating the marital relationship the divorce decree determines the respective rights of the parties with regard to:

1. division of property
2. alimony for the spouse
3. child support, custody and visitation

The divorce decree may also incorporate a separation agreement that has  been reached by both parties on these matters. The agreement has to be mutual and at the time when the decree is actually granted, the separation agreement is usually incorporated or merged into the judgment. If the agreement is merged into the judgment it is not enforceable as a contract obligation; it may only be enforced by contempt proceedings. However, the agreement may be modified in the event that circumstances have been changed (e.g., destitution). If the parties do not specify whether an agreement will be incorporated or that it will survive the decree, the court will determine the issue by inquiring into the intent of the parties at the time of the decree.

In Massachusetts, unless the parties expressly provide to the contrary, a separation agreement will be presumed to survive a subsequent divorce decree which incorporates the terms of the agreement. The difference between having incorporation within the decree is that it can only be attacked in Probate Court or under contempt proceedings. If it is incorporated in the decree and also survives the decree, a party can go to the Probate Court and the Superior Court on a contract action.

If the court rejects a separate support agreement, it will enter its own orders for alimony and child support, but the court must inform the parties of their rejection and afford each party the right to be heard on the issue.

The parties to a divorce action can provide that the separation agreement will survive the judgment of divorce as an independent agreement and will not be merged in the decree. If the court does not find the separation agreement is illegal, unfair, unreasonable or was entered into through fraud or coercion, the judge has no authority to prevent the agreement from surviving the divorce decree.

If the agreement is free from fraud or duress and fundamentally fair at the time the divorce judgment was entered, it will firmly fix the obligations and rights of the parties and in most cases will be immune to modification because of changed circumstances and the agreement may be specifically enforced.

In the case of agreements that fix child support and custody, the court has the power to modify due to changed circumstances. A spouse may also attempt to lessen the alimony payments that are fixed by the separation agreement by seeking a modification in the Probate Court. However, while the court may always change the obligation imposed by its orders, it does not have the authority to modify the parties’ agreement and therefore the agreement stands.

If the judge modifies a judgment, the effect is that the spouse who receives the modification cannot use contempt a as means for collecting the obligation under the contract as long as the paying spouse pays the reduced amount. However, the spouse may sue for the difference in contract. If the court has ordered a change in the increase of alimony, beyond what the other spouse must pay under the contract, the court may order that spouse to pay the additional amount if it causes the receiving spouse to become a public charge. Where there is a contractual provision and it is a defense to a modification that defense must be raised in the probate proceedings.

Redistribution of assets

State law permits the judge in a divorce action to assign any part of  the estate of the husband or wife to the other. Massachusetts does not make a distinction between marital property and separate property. The court has the right to make a division of property after the entry of judgment and res judicata prohibits a later division of property when these issues have been litigated.

The court is required under the statute to consider the following in the determination of property distribution:

1. length of marriage
2. age of parties
3. health of parties
4. station (standard of life)
5. occupations
6. vocational skills
7. amount and source of income
8. employability
9. their estate
10. liabilities and needs
11. the opportunities of each of the parties for  future acquisition of capital assets and income.

The statute also permits but does not require that the court consider the contributions of each party to acquisition, preservation and appreciation of the respective estate. The statute also looks at the contribution of each party to the family as a homemaker. The court cannot make such a decision on fault alone, but must consider all the above so as not to be in error.

Qualified pension and profit sharing plans are assets. Before distribution is made on these two, the court must look at the tax consequences for each individual party.

In any action that arises out of a spouse being improperly terminated from employment, any recovery will be considered property.

One spouse cannot transfer its interest to the other spouse in lieu of alimony, and if the court permits it, it is an abuse of discretion. However, if both spouses possess substantial financial assets, then they may transfer their part of the marital home in lieu of alimony. However, the statute does not permit the court to assign any of the separate property of one of the parties to a minor.

Alimony may be paid either in gross or in installments. Alimony may be also consist of rehabilitative alimony which is usually for a limited amount of time to support the spouse until that spouse is able to return to the work force. An alimony award may be modified with respect to arrears and future payments as long as there is substantial change in circumstances. Under the statute, a petition for alimony may be brought any time after a divorce. This pertains when the spouse’s position changes and might become a public charge. The Probate Court here has great discretion. In fact, the court may extend alimony payments beyond the death of the payor by taking from his or her estate. Remarriage of the recipient usually is ground for termination of alimony, but child support does not automatically stop.

The court normally requires that the spouse that is to pay the alimony provide security for that payment (e.g., bank account, boat, auto). If a spouse has abandoned the petitioning spouse, the court will permit that spouse to sell or mortgage any property on which they have jurisdiction. Again, the court has great discretion. Failure to make payments may be enforced by contempt proceedings or by civil actions in Superior Court. Failure to pay support when ordered to do so is a crime.

Usually an order for support that is issued by a court in accordance with G.L. c. 273 will include an order directing the obligor to assign a portion of his earnings or other periodic income to a person designated by the court. This assignment takes effect when the obligor has failed to meet two successive required support payments. However, if the court feels that the party might default, it will make the assignment immediately.

Anybody designated by the court to receive support payments on application to the court, the chief probation officer must send notice by certified or registered mail to the last known address of the obligor if it is found that he has made less than the full payment for two consecutive payments. The obligation of the obligor states that the assignment will go into effect within 15 days unless he requests a hearing. If the obligor requests a hearing, it must be held within 30 days of his request. At this hearing he has the right to explain that there were circumstances beyond his control that prevented him from meeting the requirements of the support order.

If the court agrees, the assignment will not take effect until some time within the next 12 months that another support payment is missed.

Notice on this assignment is sent to the employer; once the employer has received the notice, money will be withdrawn at the next payment of earnings. This notice to the employer must state the amount of money to be takin out and may not exceed the federal limits for the percent of his income which may be assigned for support.

The court also has the power to enter an order of trustee process against the earnings of the obligor. Before the court does that, all other remedies must have failed.

Custody

Massachusetts has a statute which is in favor of shared custody during the pendency of temporary orders. Both parents must submit a written plan testifying how the shared custody will work. The court has to approve any plan which must be in the best interests of the child. If the court deems it necessary it may give custody to someone other than a parent. The court may do this only if there is misconduct on the part of the parents.

Even if a parent is homosexual, that alone is not enough to deprive a parent of his/her right to custody. If the parent is a fit parent and there is no evidence that his/her sexual preference adversely affects the child's best interest, the court cannot withhold custody.

Modification

To warrant a transfer of custody for one parent to the other once there has been a determination of custody in a divorce, there must be a material and substantial change in circumstances, and that change must be of significant magnitude that the court will transfer custody if it is in the best interest of the child or children.  Any custody order in a divorce proceeding is terminated by the death of the parent who has custody, and the surviving parent is entitled to custody unless s/he is determined to be unfit. A custody decree may be modified at any time when it is in the best interest of the child. A minor child of divorced parents who is not old enough to consent cannot be removed from the state without the consent of both parents or by an order of the court.

Child support

Massachusetts statutes allow temporary orders for child support during the pendency of an action seeking modification of a divorce judgment. If the court finds that an emergency exists, that order will be entered without advance notice. However, the order may not exceed five days and a notice of a hearing on the continuation of the order must be given to the opposite party. Under Massachusetts law both husband and wife are responsible to provide for the care and maintenance of their minor children. If the child is mentally incapacitated, whether a minor child or an adult, a divorced parent as long as financially able must provide support for that child if the child was incapacitated at the time of the divorce. Child support is awarded in accordance with Child Support Guidelines issued by the chief administrative judge. The DOR is authorized to monitor collection procedures for all arrearages in child support payments that are owed pursuant to a court order. This includes wages, assignments, second demand letters, intercepting state and federal tax refunds, initiating contempt proceedings or seeking a capias (arrest warrant).

Visitation rights

The court looks at the best interest of the child to determine the manner in which visitation rights between divorced parents should be structured.

Full faith and credit

In divorce decrees from sister states when only one spouse participates, the domicile of one of the parties to a marriage is a sufficient basis for a state to render a divorce even if there is no personal service on the non-domiciled spouse. However, where only one spouse participates in a divorce proceeding and even though the stay-at-home spouse is served with notice, they may allow a default to be entered. But the stay-at-home spouse has a right to challenge the domicile of the other spouse because there has been no contested hearing on the issue of domicile in the rendering state. [If not attacked by the stay-at-home spouse, the decree from the other state is valid.]

The same principles concerning the validity of an out of state divorce do not change when both spouses participate in the proceeding. Jurisdiction still must be based on the domicile of one of the parties. However, if the stay-at-home spouse files an appearance in the court of  the state divorce action, that spouse is barred by the doctrine of res judicata from nullifying the validity of the divorce because either the  question of domicile has been or could have been litigated in that action. However, if a nonparty (i.e. collateral attack) would not be permitted to attack the divorce in the rendering state, the full faith and credit laws prevent an attack in any other state by a nonparty. If  for some reason a defendant’s consent (i.e. regarding jurisdiction) was  obtained by fraud that spouse is not barred by the doctrine of res judicata.

Mexican divorces are not recognized in Massachusetts; the state has chosen not to give them full faith and credit on the basis of comity. Any divorce that is granted in Mexico will be invalid in Massachusetts, but if one of the spouses knows of the divorce, the court will apply estoppel to prevent a party who has procured an improper out of state divorce from proclaiming its invalidity. A divorce court that has in  rem jurisdiction over the marriage through the domicile of one of the spouses, but has no personal jurisdiction over the absent spouse, can only grant a divorce. The US Supreme Court has upheld the right of a state (unlike Massachusetts) to continue in effect a support order after there has been an ex parte out of state divorce which terminated  that support order.

Where an installment is subject to modification in the state issuing the support order, a sister state may choose to enforce the issuing state’s decree as it stands or to modify it. In Massachusetts, when the court has personal jurisdiction over both parties to a foreign divorce, the court may modify the foreign judgment upon decree or a support order only to the extent that it is modifiable under the laws of the foreign jurisdiction. However, if both parties are domiciled in  Massachusetts, Massachusetts may modify the support order as if it had been issued in Massachusetts.

Massachusetts, however, has no authority to grant alimony if it was not provided for in the foreign divorce, nor may it modify a property settlement which has not merged into the foreign decree. URESA is  generally used to facilitate the enforcement of foreign support  decrees. This is done where the party files a petition under this act  in a Massachusetts court, and if the court finds that the petition sets forth facts from which the court may determine that the respondent owes a duty of support, the court will order certified copies of the petition and the court’s findings to be transferred to the court in a state that has jurisdiction over the respondent or his property.

Massachusetts cannot alter any judgment of a foreign jurisdiction which  had personal jurisdiction over both parties concerning the division of  marital property.

Any payment due under a child support order issued by Massachusetts or  any court of another state is entitled to full faith and credit. Any  Massachusetts court that takes jurisdiction over a custody matter does  not have to give an out of state order full faith and credit. Although  it may do so, it usually does not because the custody order is always  modifiable and is not a final judgment. The UCCJA requires  Massachusetts to give effect to custody orders from sister states. 

However, if Massachusetts, even though without justification, finds  that a child has been abandoned or it is necessary to protect the child  from abuse or neglect or for other good causes shown, will take  jurisdiction. Also, Massachusetts may exercise jurisdiction if it  appears that no other state is considered to be the home state of the  child, and that the child and at least one parent that has a   significant connection with Massachusetts and if there is evidence that   Massachusetts concerning the child, Massachusetts will take  jurisdiction. Massachusetts has modified this act, but the federal  statute preempts the Massachusetts statute, i.e., if a child has more connection with another state then it cannot take jurisdiction.

 

Last update: 12-04-98

 

 

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