Massachusetts Divorce and Wills Lawyer Blog

If you have a disabled child who’s receiving any federal or Massachusetts state government benefits, chances are, if you or anyone else leaves them an inheritance, they will become disqualified for those benefits.  Any needs-based benefits such as Supplemental Security Income (SSI), MassHealth, or subsidized housing which imposes an income or asset limit on the individual receiving those benefits will see the inheritance as an asset that will disqualify the individual from those benefits for a certain amount of time or until the assets are spent down.

Government benefits however are notoriously underfunded and provides the individual with the minimum required to live.  You, as a parent, want more for your child and that’s where a Special Needs Trust comes in.

A Special Needs Trust is a specific type of trust that is set up for disabled children usually by their parents or grandparents for their benefit.  This trust will hold money or an inheritance for their benefit without disqualifying them from their government benefits.  How is this accomplished?  Well, the trust money is not controled by the child or individual receiving the income from it.  They don’t get a say on when and how much they get.  That decision gets left to a third party - a trustee.  Since the child or individual has no control over the money, it is not considered a countable asset for governmental benefit purposes.

In doing your estate plan, think about any disabled children you might want to benefit and set up a Special Needs Trust for them.  Also, if you know of any grandparent or aunt who is thinking of leaving money or property to your disabled child, let them know that leaving the money or property outright to them will disqualify them from government aid and that they should set up a Special Needs Trust as well.

Despite the tone of the title, I knew adultery is still a crime in Massachusetts but was quite shocked when my twitter friend, Corine K. Claxton (criminal attorney in Worcester, MA) sent me the court opinion of the last criminal adultery trial in Massachusetts.

[COMMONWEALTH v. JUDITH STOWELL]

The last adultery case to be tried criminally was in 1983.  The woman, Judith, had a late night rendezvous with a man in an abandoned lot in his van when police came up to the van and arrested both Judith and the man for adultery.  They were both married, but not to each other.

“We take judicial notice that the act of adultery frequently has a destructive impact on the marital relationship and is a factor in many divorces.”

I disagree with the court on that statement.  I don’t think adultery is a cause of most divorces - I believe it to be a symptom of a bad marriage.  People cheat because they’re unhappy or unfulfilled with their relationship.  So there is already a downhill relationship, usually, before any of the parties cheat.

“It seems beyond dispute that the [statute] defining or punishing the [crime] of . . . adultery . . . [has] fallen into a very comprehensive desuetude.”

Desuetude, to define, is law that is still on the books but is not used or exercised.

One of the frequent questions I get asked by divorcing clients is whether to file a no-fault divorce or to allege adultery as a grounds.  They also want to know what is the impact and reason for claiming adultery or not.  I usually tell them that it doesn’t matter what the grounds for divorce is (except for some very specific instances) because the divorce will be granted no matter what.  Adultery does go to the conduct of the parties during a divorce, which in turn is a factor in determining alimony and division of property - however, in all honestly, it’s only one of many factors that go into determining alimony and division of property.

Generally, it’s much better and easier to file based on no-fault than to allege a grounds such as adultery.  I’ve gotten divorces based on adultery before and I can assure you that it’s neither simple or pleasant.

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I’m a divorce attorney and I have represented fathers and mothers and I have seen how divorce can tear families apart.  I have seen the sadness and the hardships that befalls the innocent children.  I have seen fathers who not only walk away from the mother but also his children; and I have seen mothers walk away from her children.  I have represented victims of domestic violence who cares nothing for their own safety but only cares about how to ever make their children feel safe again.

Through all this, I have also seen how fathers and mothers realize that even though they’re divorcing, they will always be a family.  I have seen the effort fathers and mothers put in to assure that their children are loved and know they’re loved.  I have seen fathers stay with their children, pay more then their fair share of child support and fight for custody of their children because it was the best thing for them.

I never had a biological father but I believe a father is more than just the person who you’re biologically related to.  A father is someone who puts on the shoes of a father.  He doesn’t have to be related to you at all.  He just has to love you, support you, teach you, and be there for you.

Happy Father’s Day to dads, both biological and otherwise.

[Adopted by a man who used to date my mom]

This is the second part of a series where I explore the usefulness of over the counter forms for various types of “legal” services that you can pick up at your local office supply store.  Today, I’m going to be talking about over the counter divorce forms.

Click here for Part 1: Over the Counter Formed Wills

Last time when I talked about Wills, I actually bought the package so I can scan it in to show you and go paragraph by paragraph to dissect it.  While I was at a similar giant office supply store today, I saw a similar packet for divorces but could not bring myself to buy it since it costs $30.00 and after looking through the packaging at the forms, I already knew what I was in for and what I had to write about.

On the cover of the package, it says that it is valid for all 50 states.  They made a similar claim for their Wills package.  As any practicing attorney will tell you, divorce laws varies from state to state.  For example, in Massachusetts, we use a system called “equitable division” whereas in California, they use “community property”.  How can one set of forms possibly comply with the laws of two different set of state laws?  The answer is that it cannot.

The forms are generic so as not to copy or identify it to any one state - and since it doesn’t specifically serve any one state, it serves none!  If you filled in any of those forms and brought them into any of Massachusetts’ probate courts to file, they will not only laugh in your face but they will likely mock you relentlessly.  Massachusetts divorce forms (yes, not all forms are bad) are specific in their appearance, structure and color.  Some forms need to be printed on pink paper (financial statements) while some needs to be printed on blue paper (child support guidelines).  The forms in the over the counter packet did not account for any of these idiosyncrasies of state divorce law and practice.

If you want free divorce forms for Massachusetts, don’t waste $30 on a useless package.  You can get them for free at the Legal Library and at the Suffolk Probate Court site.  Best of all, they’re the actual forms we use in the state and by practicing attorneys and all for a one time fee of $0.

Of course, I want to end with this:  lawyers specialize in divorce because we know the pitfalls and we know how the system works.  We’re not lawyers simply because we can fill out forms.  Having these forms is no substitute for personal legal advice.

GUEST BLOGGER: VICTOR MEDINA - Victor is managing partner at Medina, Martinez & Castroll, LLC in Pennington, NJ.  His focus is on estate planning and he authors an excellent blog at New Jersey Estate Planning.  He has given me permission to repost one of his blog entries and one that is relevant in any state.

Will? Living Trust? – Neither!

When people learn that I am an estate planning attorney, I usually get asked this question: “Should I have a will or a living trust?” Then, conversation usually turns to what the prospective client heard could or would happen with one or the other. It’s as if I’m a surgeon and the patient is telling me what they “heard” were the advantages of using one stitching procedure over another.

I usually surprise them by telling them that they should get neither. You see, estate planning is not about the documents, it’s about the RESULTS.

Whether you have a will or a living trust doesn’t matter if the plan isn’t tailored to meet your goals!

Estate Planning Without Counselling? That’s Crazy

There are a lot of estate planning attorneys in New Jersey. However, I’ll be brave enough to say that what passes for estate planning in America is little more than word processing. Estate planners, eager to engage a client, hear that a client wants “it” (whether “it” is a will or a living trust) and then proceeds to fill out one of three forms. However, without counselling (note the Old English spelling), that will or trust could be the wrong vehicle for that situation.

Let me ask a question: What do you think of a doctor who prescribes a drug simply because the patient saw a commercial on TV? Why should estate planning be any different?

Estate planning needs to be an ongoing process that centers on the client’s goals.

This is a first in a series of posts I will be writing about why fill-in-the-blank legal forms suck.  I will be focusing first on over the counter Last Will and Testaments that you can get at any office supply store.  I went to one of the big office supply stores and bought a Last Will and Testament form to try out.

Without even looking at the content of the Will, I first notice that there are 3 copies that comes with the packet.  I guess that’s a pretty good deal considering I paid around $15.00 for the set.  That’s only $5 per will!! I’m already impressed.

The Wills are 2 separate pieces of paper, front and back, totaling 4 pages.  The preamble to the Will lets you state your name and where you live.  The first part after that has you list your spouse and children.  That’s pretty standard and great.  What about if you’re a same-sex couple though?  There’s no side note explaining that even though you might be married to your same-sex spouse in 6 of the 50 states in the US, you’re still not considered married under federal law.  I guess same-sex couples are just suppose to know that this form isn’t for them - though it doesn’t say same-sex couples are not suppose to use it.

The second part lets you appoint an executor and an alternate.  What if you want co-executors?  Sorry, can’t do that I suppose.  The third part lets you appoint a guardian for your children.  What if you want co-guardians?  Sorry, can’t do that either.

The fourth part is the specific bequests.  What are specific bequests you ask?  You just have to know because there are no explanations.  Eh, only idiots need directions anyways.  There are 4 specific bequests you can make. That’s 4 and only 4.  If you have other family heirlooms, jewelry or money bequests other than the 4 - well, tough luck.  Who told you to have so much stuff?  Oh and by the way, there’s only a line and a half for you to designate what the property is you want to leave behind.  You can’t be more detailed than the line and half they give you…or else!

The fifth section deals with the simultaneous death provision if you and your spouse dies together.  Other than the fact that you can’t designate how many hours or days they have to survive you to be considered non-simultaneous, it’s pretty standard and acceptable.

The sixth section deals with the simultaneous death of a beneficiary.  It has a 60-day provision for survivorship and if you dont’ like it? Too bad!

The seventh section deals with the residue of your estate and who it goes to.  It provides that if you die, the residue is to be given over to your spouse.  It’s not an option, it simply has to be so.  If your spouse does not survive you then it goes to your children and if they don’t survive you, it goes via state laws of intestacy.  What if you had children from a previous marriage and you would like the residue to be split between your spouse and your children?  Sorry can’t do that.  What if you want to give all your estate to your children because you’ve discussed it with your spouse and they’re OK with it?  Sorry can’t do that.

The eighth section gives you can option to dictate what additional powers the executor would have.  However, how do I know what powers they originally had because it doesn’t say before this section.  How can I know what other powers I want to give my executor if I don’t know what powers he already has?  I’m confused.

The ninth provision is fun because it’s extra clauses I can put my initials next to if I chose to include them in my Will.  Damn…I don’t quite understand what all these terms mean so…I think I’ll just initial all of them then. Yay!

Part ten is the severability clause which is standard and acceptable.

The last part and the 4th and final page is where you’re suppose to sign and have it witnessed.  I notice a bolded clause as such: “CAUTION: LOUISIANA RESIDENTS SHOULD CONSULT AN ATTORNEY BEFORE PREPARING A WILL.” So since I’m in Massachusetts, I guess no one needs to consult an attorney for a will.  Makes you wonder why Wills are even a part of a typical law school curriculum and why attorneys get extra training and LLMs in tax law and estate planning. Chumps!

The signature page lets you sign the Will and makes you get 3 witnesses.  In Massachusetts, you only need 2 witnesses but I guess an extra one can’t hurt.  It does tell you to get the form notarized but if you forget, what’s the big deal right?

Something else stuck out and raised some red flags for me while I was reading this Will.  First, there are no directions on how to fill it out.  There’s no warning on there that says that a Will you buy at a craft or office supply store doesn’t substitute for good legal advice.  And the big one is, it doesn’t care if you’re 18 or 80, you can use this will.  It doesn’t care if you are single or have special needs children, you can use this will.  It doesn’t care if you have $1 to your name or a $5M estate, you can use this Will.  That seriously scares me.

As any estate planner can tell you, Wills and Trusts vary greatly from person to person, family to family, because everyone’s situation and goals in life are different.  There is no one size fits all Will.  Also, a big part of what an estate planning attorney does is to know the law and advise you on what documents you need and how to set it up.  If you have a disabled dependant, you need a Special Needs Trust to protect that child from inheritance that you might leave them that would jeopardize their state benefits.  But if you’re not advised of this, how would you know?  This fill-in-the-blank form Will certainly doesn’t tell you.

Stay tuned next time as I review a Over the Counter General Power of Attorney.

Spring and Summer are traditionally the seasons when most people get married.  So it’s not a surprise that I’ve been getting a huge number of calls and clients asking for prenups (or more properly prenuptial agreements or premarital agreements).

The unfortunate thing I find myself telling most of these clients is that they should’ve contemplated drafting this prenup months ago.  You should start negotiating and drafting a prenup, ideally, 3 to 6 months before the marriage date.

Why?

If the day ever came when you actually need to use this prenuptial agreement, during a divorce or separation, you want your prenuptial agreement to be upheld in court if it were to get challenged.  The court looks at 3 main criteria: (1) when the prenup was signed (2) whether both parties had independent legal counsel and (3) the fairness of the prenup.

If you drafted a prenup a few weeks before marriage, the argument for invalidating the prenup would go as such:  ”I didn’t want to sign the prenup but because all the invitations had already been sent out, I felt I had no choice but to sign it.”  This is the definition of duress and would, if the judge was convinced, invalidate the prenup.

So does this mean that if you didn’t read this blog post and you’re getting married in a few weeks just give up and forgo the prenuptial agreement? No.  Having one is still better than not having one at all.  This is because there’s a good chance that the prenup won’t get challenged at all if there ever was a separation or divorce.  In addition, there’s also a chance that even if challenged, the prenup would still be valid because the other 2 factors were met.

In conclusion, if possible, try to get a prenup drawn up 3-6 months ahead of time, have separate attorneys for both parties and make the prenup somewhat fair.

New Hampshire will be the 6th state in the nation to allow same-sex marriage.  The other states are Massachusetts,  Connecticut, Maine, Vermont and Iowa.

I think the tide is starting to turn in favor of equal rights and it makes me proud of our nation.

I’m reminded of Martin Niemoeller’s poem and how we should fight for equality even if it doesn’t directly affect us.

“They came first for the Communists, 
       and I didn’t speak up because I wasn’t a Communist.

Then they came for the Jews,
      and I didn’t speak up because I wasn’t a Jew.

Then they came for the trade unionists,
      and I didn’t speak up because I wasn’t a trade unionist.

Then they came for the Catholics,
      and I didn’t speak up because I was a Protestant.

Then they came for me,
      and by that time no one was left to speak up.”