Alternative Reproduction and Parental Rights

On March 6, 2012, the Supreme Judicial Court held that a father who consents to in vitro fertilization is the legal father of the children born of this artificial insemination, even if the parties agreed that he would take no responsibility for the needs of said children (Chukwudera B. Okoli vs. Blessing N. Okoli).

This holding comes on the tail of recent case law, Della Corte v. Ramirez, which held that children born of a same-sex couple become "children of the marriage" and the parties (whether biological parents or not) are legally responsible for them. In other words, both cases hold that if children are born in a marriage through alternative reproduction methods, but the parties consent to same, then both parties become legally responsible for the children. Even if the non-biological parent never adopts the children, or if the parties reach an agreement amongst themselves that one party will bear no financial or legal responsibility for the children, both parents are still considered the children's legal parents. The intent of the parties to become parents is irrelevant, just like it would be if two people engaged in sexual intercourse that resulted in a pregnancy.

IN SUM:
If you're married, don't consent to conception unless you are ready to be held legally responsible for the resulting offspring.

(c) 2014 by Law Office of Leila J. Wons. The information contained herein is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship and does not constitute legal advice. In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."

In same-sex marriages, what rights do non-biological parents have?

On February 2, 2012, the Massachusetts Appeals Court upheld a lower court's judgment that a non-biological mother of a child born during a marriage who never co-adopted the child is nevertheless considered the child's other legal parent. In other words, the court found that it was irrelevant whether an individual failed to adopt their spouse's child or even partake in the conception (by assisting with the insemination, selecting the donor, etc.).  If the child was born after the parties were married, the child became a "child born of the marriage" and entitled to the same rights as a child born of a married woman. As such, the child is entitled to support from both parents, as well as appropriate custody and parenting time with the non-biological parent.

 Prior to this landmark decision, the law was very muddy in regards to the rights of a child born of a parent in a same-sex relationship. It was unclear whether that child, if not adopted by the non-biological parent, was still considered that parent's legal child. This problem forced the courts to apply the "de facto parent" test to determine if the non-biological parent had shared in more than half of the care-giving responsibilities for the child, therefore creating a parent-child relationship that would enable that parent to custody and visitation, and also establish a child support obligation.

While this new case (Della Corte v. Ramirez) confers necessary rights on non-biological parents and the children born of their marriage, it is still imperative that same-sex couples complete co-parent/second parent adoptions. Doing so ensures that non-biological parents retain their important parental rights when traveling outside of the Commonwealth and into states that do not recognize same-sex marriage, or that have yet to establish case law similar to Della Corte v. Ramirez. For more information about the rights of same-sex parents, please contact Attorney Leila J. Wons.

(c) 2014 by Law Office of Leila J. Wons. The information contained herein is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship and does not constitute legal advice.
In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."

Divorce Homework

You have decided to file for Divorce . . . now what?

The decision to file for divorce is an extremely emotional one. It is never spontaneous, and is always the result of serious and thoughtful considerations. Likewise, the process of actually filing for divorce should be carefully thought out and planned. Jumping into the divorce “deep-end” is not the best option; dipping your toes in the water and slowly immersing yourself in the legal process will prevent you from quickly sinking and getting in over your head.

The first thing to do – even prior to hiring an experienced divorce and family law attorney – is to gather documents about your finances.

·        This includes finding out details about your money: Where is it kept? Who has access to it? What are the account numbers? What paperwork must you fill out to obtain statements for the past three years?  With regards to retirement accounts, the analysis will be the same: Who is in charge of investing our funds? Have any withdrawals been made recently? How can I obtain information regarding past investments, contributions and withdrawals?

·        You will also want to run a credit report to determine whether there are credit cards or loans in your name that you are not aware of, and also to see just how many open balances there are. Gather past account statements and determine who to contact to obtain additional ones, if necessary.

·        With regards to your home, make sure you know where the mortgage is held, what your monthly payments are, how those payments are made (i.e. direct transfer from a separate bank account) and what the outstanding balance is. Does this payment include taxes and insurance? Are there any outstanding property taxes due?

·        Next, you will also want to make a list of all of your monthly expenses: Who provides the cable, Internet and phone services, whose name are these under, and how are they paid? What about electric and heat? How is health insurance paid and how much do you spend each month on prescriptions for yourself and for the family?

·        With regards to the children, if any, what activities are they enrolled in, how much do these cost, and who is billed for them? Are any of the activities automatically deducted from a bank account or charged on a credit card?

Second, you need to obtain a certified copy of your marriage certificate. If you can’t find your original, contact the town hall in the city you were married in and they will explain the process. Unless you were married outside of the United States, the Court will not allow you to file your Complaint for Divorce without your marriage certificate (unless there are emergency circumstances present, in which case the court may allow you to file the certificate late via a Motion.)

Third, create a plan of action. If you have funds readily available for retaining counsel, or even if you have to proceed with Limited Assistance Representation, schedule a consultation with a dedicated divorce lawyer.  During your meeting, discuss the divorce process in depth, review potential problems that may arise given your specific circumstances, and also create a homework list for things that need to be completed prior to or immediately following the filing of your Complaint for Divorce.

 Making the decision to file for divorce is the first, and sometimes hardest, step towards resolving your family law matters. Doing your “homework”, seeking experienced legal assistance and becoming informed about the divorce process will ensure that you stay afloat in the dark and often tumultuous waters of the legal system.

(c) 2014 The Law Office of Leila J. Wons. The information contained herein is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship and does not constitute legal advice.
In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."

Limited Assistance Representation

This economy has placed those seeking divorce or assistance with domestic relations matters in a very difficult position when it comes to hiring an attorney. First, financial matters greatly impact all relationships and are often the cause of divorce or child support modifications. Unfortunately, this also means that obtaining legal assistance becomes seemingly impossible, as there are limited funds available.

A good option for individuals or families with more limited means who desperately need legal assistance is Limited Assistance Representation (LAR). Originally started as a pilot program out of Hampden, Suffolk and Norfolk counties, LAR has expanded to all Massachusetts Probate and Family Courts.  LAR allows attorneys to assist individuals with their domestic relations matters on a limited basis, without filing a general appearance. In essence, this means that an attorney can help someone draft legal documents, respond to discovery requests, and complete other legal writing. An LAR attorney can also appear in court on a specific matter by filing a Notice of Limited Appearance, with a Withdrawal on the same day.

By using LAR, an individual gains the assistance of counsel as s/he is able to afford it. Further, all agreements with regards to the scope of assistance by the attorney are made in advance and in writing, so there is no confusion as to how much or how little an attorney will do.

Many attorneys are taking advantage of LAR and also offering reduced rates for doing so. However, both attorneys and clients should proceed very carefully when entering into an LAR agreement. First, while an individual may only need assistance on specific matters (such as drafting a motion or appearing at one hearing), it is imperative that a complete copy of all documents filed in the matter be provided to the attorney for his or her review. Even if an attorney's assistance is limited to the drafting of one document, the attorney must be fully aware of all aspects of the case so that correct and thorough legal advice is provided. Second, it is common for other issues to arise during a court hearing that were not spelled out in court documents or pleadings. If an LAR attorney does not know the details or history of a case, they will not be able to provide as complete and thorough representation as they could. Third, the lines of where LAR ends and pro se representation begins can become blurry for the court and for the opposing counsel or party. This may mean that documents are sent to multiple individuals, the LAR attorney is contacted instead of the client, or vice versa. This is why a clear agreement between the LAR attorney and the client is so important; it provides both parties with the ability to clearly advise the court and opposing parties of the scope of representation, in order to minimize confusion. Last, the cost of LAR can quickly rise, especially if an individual ends up needing more assistance than anticipated. However, regular statements and amendments to the LAR agreement can help predict the overall cost of work and prevent surprises.

All possible problems aside, Limited Assistance Representation is a great alternative to those needing legal advice and assistance, but who have limited means and cannot retain general counsel. For more information on LAR, please look at this information from the Probate and Family Court Department, and don't hesitate to contact Attorney Wons for a consultation.

(c) 2014 The Law Office of Leila J. Wons. The information contained herein is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship and does not constitute legal advice.
In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."

Important child custody information for never-married parents

Today, it is much more common to have children outside of marriage. In fact, 40% of children born in the U.S. today are born to parents who are not married (NPR.org).  Regardless, there is still very limited information available to Massachusetts parents, especially fathers, of children born out of wedlock and their legal rights . In a nutshell, here are the current custody rights afforded to never-married parents and their children (mostly found in chapter 209C, section 10 of the Massachusetts General Laws):

• Children born out of wedlock are entitled to the same rights and protections as children born of a marriage (found in chapter 209C, section 1).

• Unless and until a man is adjudicated the father of a child born out of wedlock (i.e. via a paternity test) or executes a voluntary acknowledgment of paternity (i.e. signs the birth certificate), the mother has sole legal and physical custody.

• Even after a man is adjudicated the father or executes a voluntary acknowledgement of paternity, custody remains with the mother until a different custody order is established by a probate and family court.

• What this means is that until an action is filed in the probate and family court (and service is accomplished on the mother) a father has no say in anything pertaining to the child. This also includes where the child resides. For example, a mother can take the child to another state without notice to the father, and a court is precluded from ordering her back to Massachusetts.

• While a judge can order shared legal custody to divorcing or divorced parents, couples of children born out of wedlock cannot share custody unless they agree to do so, or unless the court finds that they have historically been able to exercise joint responsibility for their child and can communicate and plan effectively regarding what is best for their child.

• In addition, a court must determine who the primary caretaking parent was for the six months prior to the court proceedings, and maintain that relationship.

• For fathers, this can be lose/lose situation:  if the mother won't let a father have involvement in the child's life until he files the proper documents in court, he hasn't been able to exercise joint responsibility for his child, show cooperation with the child's mother, or act as a caretaker. So not only has he missed out on valuable bonding time with the child, but he will probably lose out on equal decision-making power in the future or the ability to obtain joint physical custody.

• On the other hand, this provision protects mothers and children from the return of absentee fathers who are trying to quickly establish a relationship with their children (perhaps because they have been ordered to pay child support).  It would not be in the child's best interest to force them into a relationship with someone they do not know well or remember.

Child custody is a very difficult, complicated and emotional matter. It is important to obtain experienced legal counsel to help you navigate through the court system and protect the best interests of your child. Contact our Westborough Child Custody Lawyer to discuss your specific issues further.


(c) 2014 The Law Office of Leila J. Wons. The information contained herein is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship and does not constitute legal advice.
In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."

How to Survive the Holidays

Happy holidays, everyone.
As we approach the holiday season, it is important to remember that, regardless of what may have happened in the past, the focus should be on the future. Take a few minutes to acknowledge everything good in your life (and I know there's plenty!) and fight off the urge to focus on what you don't like, or wish you didn't have (or would like to have).

For those of you with children, remember that they are constantly watching the adults around them and learning from them. So rather than think of all the pain that a broken relationship has put you through, think of what that relationship resulted in: your child. Don't criticize the child's other parent in his or her presence, prevent others from doing so, and work with the other parent to establish a holiday schedule that works for both of you, but that puts the emphasis on your child and what would be in his or her best interest. Yes, there will likely be last minute requests to change the holiday schedule, but a calm and cooperative mindset will make getting through the holidays without conflict a breeze. Here's to a peaceful holiday season.

(c) 2014 The Law Office of Leila J. Wons. The information contained herein is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship and does not constitute legal advice.
In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."

What is Alimony Reform All About?

On September 26, 2011, Governor Deval Patrick signed an act reforming alimony in the Commonwealth, the "Alimony Reform Act of 2011". This alimony reform has significant repercussions on currently existing alimony orders, as well as future alimony judgments, and will become effective March 1, 2012.

The following is a breakdown of the new alimony laws and what they mean.  However, this is not a complete outline of the Alimony Reform Act! If you have a currently existing alimony order or are interested in learning more about how alimony may or may not apply to your particular situation, please schedule an appointment with Attorney Wons.

ALIMONY AND PROPERTY
In determining an equitable distribution of property between parties in a divorce action, the court shall also consider the alimony order, if any, that is established.

TYPES OF ALIMONY
There are 4 types of alimony that can be ordered:

• General Term Alimony (what most people think of when we speak about alimony, i.e. periodic payments for a set amount of time);

• Rehabilitative Alimony (periodic alimony payments of not more than 5 years for a spouse who is expected to become economically self-sufficient by a set time, i.e. when they finish school or training);

• Reimbursement Alimony (periodic or lump-sum alimony payments in a marriage of 5 years or less meant to compensate a spouse for their contribution to the other spouse's financial resources, i.e. payments made to a spouse for taking care of the children and the home while the payor spouse earned his or her degree); and

• Transitional Alimony (periodic or lump-sum alimony payments lasting no more than 3 years in a marriage of 5 years or less to enable the recipient spouse to transition into an adjusted lifestyle, i.e. to enable a spouse to find suitable housing once the marital home is sold).

DURATION OF ALIMONY
Rather than leave the duration of alimony to the sole discretion of the courts, judges now have to follow general guidelines when issuing General Term Alimony:

• For marriages of 5 years or less, alimony cannot last for longer than 50%  of the number of months the parties were married (2.5 years max, or 30 months);

• For marriages of 10 years or less, alimony cannot last for longer than 60% of the number of months the parties were married (6 years max, or 72 months);

• For marriages of 15 years or less, alimony cannot last for longer than 70% of the number of months the parties were married (10.5 years max or 126 moths);

• For marriages of 20 years or less, alimony cannot last for longer than 80% of the number of months the parties were married (16 years max or 192 months);

For marriages of over 20 years, the court still has the discretion to determine how long alimony payments will last. However, in all instances alimony must terminate upon the paying spouse's attainment of the full retirement age (when he or she is eligible for the old-age retirement benefit under the US Old-Age, Disability, and Survivors Insurance Act.)

MODIFICATIONS OF ALIMONY JUDGMENTS
Notwithstanding the above guidelines, parties may seek modifications of their alimony orders at any time if a material change in circumstance occurs. In addition, the court may order that alimony continue after retirement age for "good cause shown". It will be interesting to see what the courts determine constitutes said "good cause", though I would think it applies to situations where one spouse receives substantially more assets that the recipient spouse from their respective pensions, social security or retirement accounts.

Although the new law becomes effective March 1, 2012, parties seeking modifications of existing alimony orders because the terms of their judgments exceed those set forth herein, cannot do so right away. Instead, they must follow these timelines:

• For marriages of 5 years or less, the parties may file on or after March 1, 2013;

• For marriages of 10 years or less, the parties may file on or after March 1, 2014;

• For marriages of 15 years or less, the parties may file on or after March 1, 2015;

• For marriages of 20 years or less, the parties may file on or after September 1, 2015.

• Regardless of these time limits, anyone reaching full retirement age on or before March 1, 2015 may file their Complaint for Modification on or after March 1, 2013.

ALIMONY AND CHILD SUPPORT
While a party can receive alimony at the same time as he or she is receiving child support, there are now limits for how long these two can last: The combined duration of alimony and child support cannot exceed the longer of 1) the length of an alimony order as set out above or 2) rehabilitative alimony that commences when child support terminates.

For example, if a couple with a 5 year-old child gets divorced, child support will likely be issued and continue for another 17 years (until the child graduates from college). If this couple had been married for 5 years or less, alimony can only last for a maximum of 2.5 years or however long a court would deem appropriate for the recipient spouse to become rehabilitated.

(c) 2014 The Law Office of Leila J. Wons. The information contained herein is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship and does not constitute legal advice.
In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."