REPORT ON LDRC
Part 1: Oxymoron of the Quarter:
As the elephants and donkeys descend on Cleveland and Philadelphia this month, how much of that do you think we are going to see?
(We are out of the Tr**p verse business.)
Part 2: Getting the "Alternative" Out of Dispute Resolution
Nearly five years ago, as we opened our doors as a multi-method center for dispute resolution (mediation, arbitration, conciliation, master services), centered on family law, we realized that we aspired to be a first option for potential litigants and litigants alike, not just an “alternative”. We think that we have largely accomplished our mission, illustrated by the fact that many parties, with counsel's direct participation, are coming to us for services earlier and earlier in their particular processes.
That is one reason why we were delighted to see that the Massachusetts Bar Association alternative dispute resolution committee has grown into the MBA Dispute Resolution Section. Overdue, but most welcome, MBA's move demonstrates just how mainstream the field of “neutral” (we’d rather say “impartial”) services has become - in the best sense of that word. Always respectful of the court's role in a civilized society, but also recognizing it's limited repertoire of remedies, unwieldy nature, inherent tension, delays, costs and impracticality for many families, we augment the judicial system, never replacing it, but always available to lighten its load -- and that of families.
Kudos to the MBA.
Part 3: No Longer “Alternative” Either, for Peacemaker David A. Hoffman, Esquire.
We were inspired and affirmed by David Hoffman’s recent “Tedx Talk”, broadcast from Northern Illinois University, about his decision to limit his practice solely to the non-court processes of mediation, arbitration and collaborative law. We share David’s admiration for litigation as a necessary and indispensible tool for social justice; while recognizing that for most divorcing people, most of the time, it is neither. David kindly identified us as former litigators who preceded him down this road. We happily acknowledge David’s leadership – and his encouragement – when we began our practice. We are happy to know you, David, and to be your colleague.
Part 4: Guest Contributor: Jonathan E. Fields, Esquire on Deflategate, Trust Edition
Our friend, Jon Fields of Wellesley's Fields, Dennis & Cooper LLP, offers his excellent piece on "decanting" of trusts, a strategy that can be used to modify the impact of donative intent, but also potentially, to defeat spousal divorce interests. Using the case Morse v. Kraft, 466 Mass. 92 (2013) as his springboard, a case in which Robert Kraft’s designated trustee successfully decanted (we didn’t say “deflated”, but it did admittedly occur to us) family sub-trusts, for the purpose re-settling assets in an instrument over which Kraft’s financially sophisticated adult sons could have greater influence, Jon explores this phenomenon and surveys the state of play on decanting here and elsewhere. The furor over the Massachusetts Appeals Court decision in Pfannenstiehl v. Pfannenstiehl, still simmering as we await the Supreme Judicial Court's opinion on further appellate review this summer, makes Jon's piece extremely timely, on a topic that is not broadly understood.
Part 5: The LDRC Blog
Today, we feature our most recent blogs on alimony, two on the SJC’s Duff-Kareores v. Kareores (one more is on its way). This case continues the years’ long process of fleshing out the Alimony Reform Act (eff. 3.1.12), by “statutory construction” of the appellate courts. The case is both remarkable for its unusual fact pattern, and we think it a sensible opinion (at least on alimony), generally.
Shortly, we will address DeMarco v. DeMarco, interesting both on a personal level and important for re-emphasizing the important concept of the right to contract in family law matters.
We might have had another extremely important alimony case to blog about this quarter, on the interplay of "need" and income differential in M.G.L., ch. 208, §53(b). But, the Appeals Court bypassed it by blistering a trial judge, instead, for what it deemed to be bias, and remanded without comment on the alimony issue. A unfortunate case, on numerous levels.
Part 6: An Apology
During this past quarter, our Google FeedBurner utility has inundated some (maybe all) of you with old blog entries. We think that we have this fixed, now; and we apologize for tiresome blog repeats. We hope that you will keep reading despite this glitch. If it happens again, please let us know and we promise you that we will get on it, promptly.
We wish you all a peaceful summer.
Bill and Chouteau
Revoking The Irrevocable Trust In A Divorce
Or Never Say Can’t, Say Decant
by: Atty. Jonathan E. Fields
In the last issue, I wrote about Pfannenstiehl v. Pfannenstiehl, 88 Mass.App.Ct 121 (2015), which involved an irrevocable trust in a divorce. And I just finished a chapter on trusts and inheritances in divorce for an upcoming MCLE publication, Financial Aspects of Divorce, due out later this year. So my mind is focused on the interplay of trusts and divorce – two spheres of law that don’t really play nicely with each other and, for some reason, continue to fascinate me.
In a recent case of mine involving multiple irrevocable trusts, I came across the issue of decanting – that is, pouring assets from an irrevocable trust into a newly created trust. Hmmm. Then I thought: what if, during (or anticipating) a divorce, the trustee decanted the assets into a newly created trust that was, say, more divorce-proof than the original trust?
But, before we dive into that issue, a bit more about decanting. read more...
cohabitedmarrieddivorced: The SJC makes it up and gets it right: Duff-Kareores v. Kareores – Part 1
The Massachusetts Supreme Judicial Court (SJC) recently encountered a fact pattern that only a law school professor could love. In all likelihood, the state legislature did not consider it while cobbling together the Alimony Reform Act (ARA). Then again, life happens; and sometimes we have to make it up on the fly! The SJC did, and got it right. read more...
cohabitedmarrieddivorced: The SJC makes it up and gets it right: Duff-Kareores v. Kareores – Part 2
In our last entry, we began discussing the law school exam scenario turned real life divorce case in the Supreme Judicial Court’s (SJC) recent case, Duff-Kareores v. Kareores. The trial judge faced the challenge of determining how long the marriage was for alimony purposes, under M.G.L., ch. 208, §4. The parties were married for 8 years, divorced and lived separately for 4 years, cohabited while divorced for 5 ½ years and, finally, re-married each other for 6 months before the onset of divorce #2: uncharted territory under the Alimony Reform Act (ARA) (eff. 3.1.12). read more...