Family Law Advisor®
The Divorce, Alimony, and Custody Reporter
Volume 6 Issue 1
June 2002
Common Law Marriages from Colonial Times and Beyond
In the distant past the British recognized common law marriages by
declaring a man and woman married by virtue of living together and telling
the world they were married. Although England abolished common law marriages
in 1753, some of the American colonies, and later some states, recognized
these informal marriages. Massachusetts, however, outlawed common law
marriage in 1646.
But the legal tale - even in Massachusetts - is complex. If a man
and woman spent any time during their relationship domiciled in a state
that allows common law marriage, then the courts in Massachusetts will
also recognize it and grant the parties all of the rights of a married
couple.
In the year 2002, eleven states and the District of Columbia recognize
common law marriage according to Cornell University, including, Alabama,
Colorado, Iowa, Kansas, Montana, Oklahoma, Pennsylvania, Rhode Island,
South Carolina, Texas and Utah.
Tip: If you have a court case in a state that does not recognize common
law marriages of its own residents, you need an expert on the laws of
any one of the eleven states that validates those relationships or the
District of Columbia where you may have resided during the relationship
to prove the existence of a common law marriage.
Deviating from the Child Support
Guidelines: Children Born Out of Wedlock to High Income Parents
Lawmakers have been trying to eliminate many of the economic distinctions
between children born to married people and children born out of wedlock.
The child support guidelines, for example, apply to all children, regardless
of their parents' marital status.
As a practical matter, some bias remains because some judges are limiting
the amount of support unmarried parents pay in the high income or so-called
“out of guidelines” case. For example, in Massachusetts the child support
guidelines apply only to the first $100,000 in income of the noncustodial
parent. By custom and practice, courts do not disregard income over
$100,000 in divorce cases when entering financial orders. The judges
often award alimony based on a percentage of the excess income, or in
some cases, will deviate from the guidelines and award child support
based on income over $100,000.
The out-of-wedlock case will never generate an alimony order and may
result in a lower child support order based strictly on a percentage
of the first $100,000 and nothing more. Marriage can create an economic
advantage for custodial parents and tends to disadvantage those children
born out of wedlock. The current system also places a heavier burden
on lower income parents paying support because they end up dedicating
a larger percentage of their after tax income to child support than
the high earning parent. A professional athlete, for example, earning
over a million dollars a year, could pay as little as $25,000 a year
for the support of one child or 2-1/2 percent of his annual income.
A noncustodial parent earning $100,000 a year also pays $25,000 for
one child, but that amounts to 25 percent of gross income.
Wiretapping - Illegal, Yet Rewarding
Divorce lawyers usually advise their clients not to tap a spouse's
telephone line because that would be a violation of law and because
the tainted evidence might not be admissible in divorce court. Wiretapping
and eavesdropping are still crimes that could lead to five years imprisonment
but a recent Massachusetts case that used tainted evidence to get a
conviction makes us rethink that advice.
In Commonwealth v. Barboza (Mass., 2002), the Appeals Court
ruled that a secret recording of a telephone conversation between a
16 year old boy and the defendant, a 57 year old man, was admissible
in the criminal trial on four counts of statutory rape and two counts
of indecent assault. The defendant was convicted, and while that may
have been the right result, lawyers are concerned about the huge amount
of discretion given to the court in deciding when to admit tainted evidence.
One lawyer recently opined that courts now presume the illegally obtained
evidence is admissible. An the one hand the wiretapper is threatened
with imprisonment and on the other, is rewarded by being allowed to
use the recordings.
Tip: do not risk five years in jail. You can usually find other means
of proving bad conduct on the part of your spouse, such as eye witness
accounts, including yours, and documents. Also, most courts are not
interested in a long list of spousal misconduct in the first place.
While courts do not like immoral behavior like adultery, they do not
hand out economic punishments and rewards because of sexual misconduct.
Prenuptial Agreements: A New Twist
in Massachusetts
DeMateo v. DeMateo was decided by the highest court in Massachusetts
in the spring of 2002, just in time for the summer wedding season. For
the first time, the court indicated that the parties could effectively
cut off alimony and strictly limit one spouse's share of marital assets
with a prenuptial agreement, even if the results were unfair at the
time of the divorce.
Before the DeMateo case, divorce lawyers advised clients that
prenuptial agreements had to be fair and reasonable on the date the
agreement was signed and on the date of divorce. It now appears that
courts will not examine the fairness of the agreement on the date of
divorce. The so-called “second look” has been abolished, forcing the
economically disadvantaged party to negotiate vigorously at the outset,
while planning a wedding supposedly based on love and affection, or
live life barely above the poverty level after divorce.
Tip: If you are the monied party, you might consider offering enough
alimony to keep your spouse out of poverty, as defined by the federal
government. Some lawyers are inserting cost of living adjustments in
their alimony provisions to keep the prenuptial agreement abreast of
inflation. If you are the disadvantaged party, ask for a so-called financial
ladder that places you on a higher alimony and property rung each year
of the marriage.
Quick and Easy Uncontested Motion
Sessions
If you want to present an uncontested motion to a divorce court judge
in Massachusetts, call the motions clerk at your county probate and
family court to find out if they have a special fast-track to handle
those motions. Middlesex County in Cambridge, for instance, allows uncontested
motions in certain kinds of cases to be handled by an assistant register
between 8:30 and 10:30 in the morning every day of the week.
Suffolk County in Boston adopted a similar procedure in late 2001
between 8:30 and 9:30 in the morning with great success and approval
by lawyers and parties. These fast-track sessions allow you to get a
motion approved and all of the paperwork done before you leave the courthouse
in the morning.
Tip: call the motions clerk before you schedule a hearing on your
motion. If eligible, use the uncontested motions session. You could
save time and money.
A Few of Our Favorite Things
Quotes and Observations
“Watch how your date treats the waitress on your first date because
that's the way he'll treat you in three months.” Advice from a mother
to her college daughter.
“Not every day in court is a good day. Some days are just plain awful.”
Senior partner to a young associate.
Reviews
If you are a mediator or a client of a mediator, take a look at “Mediating
Divorce: a Step-by-Step Manual” by Marilyn S. McKnight and Stephen K.
Erickson, published by Jossey-Bass in 1999. The authors, a social worker
and an attorney, provide a wealth of information about mediation, the
psychological aspects of dating, marriage and divorce, and some excellent
forms that are also helpful for negotiating and litigating your case.
Charlotte Ford, socialite and manners maven just published a new book
with Jacqueline Demontravel on “21st Century Etiquette: Charlotte Ford's
Guide to Manners for the Modern Age” (The Lyons Press, Dec. 2001). Ford
includes down-to-earth advice on how to announce your divorce, dating
after separation, and planning a remarriage. While some amazon.com reviewers
fault her for some of her advice as too upper crust - like not wearing
spike heels on a friend's yacht - her observations on divorce American
style are right on target.
We have something for children called “The Divorce Helpbook for Kids”
by Cynthia MacGregor (Impact Publishers, Inc., 2001). If you know a
child ten years or older going through a divorce, the child might appreciate
a copy of MacGregor's book, although the advice is a too simplistic
to be helpful at times like “Divorce is a very upsetting thing…but you
will get through it”, the last sentence in her chapter on “A
Lot of Questions about Divorce…with Answers.”
Her advice on visitation is more practical and probably more useful
when she tells kids to make visitation easier by bringing toys, games
and books from home, make a list of things that happen to you between
visits, and invite a friend to come on visitation. MacGregor's advice
may offend some noncustodial parents because it makes it sound like
visitation is unpleasant in the first place, but in newly separated
cases, her suggestions could cut down on a child's pain and suffering.
Parents should also heed the advice.
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