Monthly Archives: August 2011

Sentencing Legislation Teed Up for Sept.

While it has been reported that the halls of the State House have been quiet lately, work is still getting done in the legislature.  Not only was the 155-page casino bill released this week, but the Judiciary Committee announced their hearing schedule for September.  The Judiciary Committee will hold two public hearings next month.  Bills pertaining to sentencing and re-entry issues will be heard on Tuesday, September 20th and bills relative to sex offenders and statute of limitations will be heard on Tuesday, September 27th.

Scheduling these two hearings almost immediately after the unofficial summer recess is significant and sends the message that the legislature wants to do sentencing reform…

The agenda for the first hearing contains 44 pieces of legislation currently under consideration by the Judiciary Committee.  One of those bills, House 40, was filed by Governor Patrick earlier this year and would provide parole eligibility for non violent offenders in state prisons.  House 40 builds upon the sentencing reforms contained in the comprehensive crime bill that Governor Patrick signed into law last August.  Last session’s crime bill is known for its landmark CORI reform, but it also included other important reforms such as parole eligibility for drug offenders serving mandatory minimum sentences in county prisons.  Now, parole eligibility can only be granted if the drug offenses did not involve guns, violence or children, and if the individual did not direct others in the sale of drugs.

There’s a lot of work to be done in this area.  Recently the Legislature established the Special Commission to Study the Commonwealth’s Criminal Justice System that will begin its work in September.  One of the board members will be a representative from the BBA and we look forward to being involved in the debate on policies that keep our Commonwealth safe while offering sensible solutions to Massachusetts’ sentencing practices.

-Kathleen Joyce

Government Relations Director

BostonBar Association

Comments are disabled for this blog.  To share your comments email issuespot@bostonbar.org

Advertisements

Leave a comment

Filed under Uncategorized

Practictioners’ Perspectives on the Alimony Reform Act

With the Alimony Reform Act of 2011 poised for passage, we thought we’d ask some of our members to share their reactions on the coming changes.  Here are the independent thoughts of the expert family law practitioners we canvassed:

Nan Elder – Bowman Moos & Elder, LLP

I think the principle benefit of the impending statutory change lies in the fact that it provides some scaffolding around which alimony awards can be negotiated and structured.  But the amount is only “some,” and the structure only “scaffolding” because the legislation also provides significant opportunity for deviation and modification – the exercise of judicial discretion – and it will take some years and quite a bit of litigation and appellate work to better clarify the full structural outlines.  For shorter term marriages, it may provide more guidance and definition sooner, and thus enable more ready resolution of them.   Longer term marriages will, however, quite probably still raise significant issues regarding its application.  This will be especially true in both new divorces and modifications for those “traditional” cases where one spouse has been the primary wage or salary earner and the other the caretaker and homemaker, often in expectation of, reliance on, and even with the express understanding between spouses of, the indefinite continuation of this family model.

As with any change of such magnitude, the transition will be arduous in a number of respects.   For litigants, it presents both an opportunity for relief and resolution for some and a source of reopening of wounds and the burdensome expense of extended or renewed litigation for others.  For lawyers, it presents an opportunity for some really creative thinking and lawyering, as well as for providing a framework for advising clients – but cynics might also suggest it presents an unexpected or unwarranted bonanza of new work.  For the courts, its implementation risks further burdening an already broken system.  Although the legislation staggers the availability of modifications of alimony judgments predating its effective date in March 2012, most practitioners I’ve talked with expect a flood of requests in addition to the uncertainty and litigation that will inevitably ensue as the statutory structure is fleshed out.

While the transition and implementation may well be both lengthy and rocky, the end result will hopefully provide some measure of clarity, if not certainty, especially for shorter term marriages.

Jennifer Rivera-Ulwick – Middlesex Probate & Family Court

The benefit of the proposed changes is the potential sense of predictability and consistency in determining alimony which will allow people to resolve this issue without seeking court intervention at the trial level.   Like the Child Support Guidelines, the law will provide a roadmap of sorts in formulating the appropriate alimony award, if any, based on the circumstances of the parties.  Given the new scheme for setting the duration, amount and form of alimony awards, I anticipate not only a decrease in the number of cases tried over alimony but also an increase in modifications being filed with the court to adjust prior alimony orders in accordance with the new legislation.  The roll-out dates, which determine when a modification may be filed as a result of the change in the law, will initially help relieve the courts from being overburdened with modification filings although the number of filings may depend in part on the level of awareness of the changes on the part of alimony obligors which is sure to increase each year after the law becomes effective.

Anita Robboy – Prince, Lobel & Tye, LLP

Massachusetts is long overdue for a critical look at Section 34 as our Commonwealth is very much out of line with nearly every state in the duration of alimony awards.  The Bill has clear guidelines regarding expected points of termination.  The major change will be that attorneys can no longer state that a Probate and Family Court judge lacks the power to terminate alimony.  The Bill specifically enables judges to limit the duration of alimony and to amend prior judgments that had no termination point.  The interplay between alimony awards, if any, and the division of assets is forever altered.  The recipient of alimony has lost an important ‘chit’: the value of future alimony.  The payor can rely on obtaining termination upon the happening of certain events, such as age, the length of alimony already received in relation to the marriage, and cohabitation.  Counsel must now advise clients that alimony comes, if at all, in a variety of flavors.  It will be important to strategize which form of alimony is applicable and/or most advantageous.

John Fiske – Healy, Fiske, Richmond & Matthew

As a mediator, I see the greatest benefit of the alimony bill as analogous to the Child Support Guidelines: it gives clients a good idea of what a court would do without their having to go to court.  In my 32 years of mediating divorces, the uncertainty of the length of alimony has been the most challenging obstacle for many husbands and wives.

I will tell [my clients] I want them to make informed choices, and to read the law, or any available summary of the law including my own, to get an idea of what a court would do before they choose their own solution.  The outcome of many of my cases would not be very different [had the reforms been in place previously], but the process of getting there will be more efficient. The outcome in some of my cases will be different, probably reducing the number of cases where clients define alimony for a certain period and then agree to leave open the question of whether to continue alimony in some amount after that date.  This law will be beneficial to just about everybody: clients, children, lawyers, mediators, judges, probation officers and financial planners for example.

-Michael Bouton

Government Relations Department

Boston Bar Association

Comments are disabled for this blog.  To share your comments email issuespot@bostonbar.org

Leave a comment

Filed under Uncategorized

Still Proud to Be First!

Recently, New York became the latest state to legalize same-sex marriage when Governor Andrew Cuomo signed the Marriage Equality Act into law in June.  A 62-member Senate had approved the bill by a vote of 33-29.  The bill officially took effect July 24th, which marked 30 days since Governor Cuomo signed it into law.

However, this monumental decision by the New York State Assembly did not come without a fight. Lawmaker Daniel O’Donnell, the first openly gay member of the New York State Assembly, introduced a same-sex marriage bill in 2007, which was approved by the Assembly three times in five years, but subsequently rejected by the Senate each time. The final push towards legalization came with a switch in the opinion of four of the New York representatives (three Democrats and one Republican).  Some of the representatives admitted that they were swayed by the public opinion in their districts while others revealed a change in their moral stance on the issue.

Following the Supreme Judicial Court’s 2004 ruling in Goodridge v. Department of Public Health, Massachusetts became the first state to legalize same-sex marriage. The Boston Bar Association filed an amicus brief in support of the plaintiffs in the case, seven same-sex couples who argued that Massachusetts law subjected them to discrimination by denying them the right to obtain civil marriage licenses.   When the Massachusetts law officially took effect on May 17, 2004, we became the sixth jurisdiction in the world to legalize same-sex marriage after the Netherlands, Belgium, Ontario, British Colombia, and Quebec.  Since then, several U.S. jurisdictions (Connecticut, the District of Columbia, Iowa, New Hampshire, Vermont, and now New York) have joined Massachusetts in enacting similar measures to legalize same-sex marriage.

President Obama’s 2011 decision to direct the Justice Department to stop defending the Defense of Marriage Act (DOMA) against lawsuits challenging its constitutionality marked a significant shift in the political atmosphere surrounding the issue. There are currently two cases challenging the constitutionality of DOMA in the First Circuit: Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services and Gill v. Office of Personnel Management.

The BBA takes pride in its record of supporting equal rights and universal access to justice as the issue of same-sex marriage progresses.  We will continue to monitor same-sex marriage issues throughout Massachusetts and in Washington.

-Michael Bouton

Government Relations Department

Boston Bar Association

Comments are disabled for this blog.  To share your comments e-mail issuespot@bostonbar.org

1 Comment

Filed under Uncategorized

Celebrations in the Senate Before the Summer Recess

In the days and even hours leading up to the legislature’s unofficial summer recess last week, there was a flurry of activity in the State House.  In the hubbub of lawmaking that took place, there were a few no-brainer bills that passed, but more contentious ones – like the court reorg bill– came down to the wire.  Among the bills passed was the long awaited and widely supported alimony reform law.  Sailing through with unanimous support in both branches of the legislature, it will make its way to the governor’s desk once agreement is reached between House and Senate differences in the bill.  Also receiving a unanimous vote in the Senate was the bill to provide post-conviction access to DNA.

To an outside observer, or any of the tourists trying to peek their heads inside the jam-packed upper gallery of the Senate Chamber last Thursday, it may have seemed like just another formal session in the Senate.  Senators milled around the chamber, staff came and went.  At 1 p.m., the Senate convened and immediately went into a recess.  Thirty minutes later, Senate President Murray was at the rostrum long enough to recite the pledge of allegiance before recessing again for a few moments.  Over the next hour, after a whirl of activity on various Senate bills, alimony reform was finally taken up and engrossed by a roll call vote of 36-0.  Applause broke out in the Senate Gallery and in the hallway outside.

Next up: access to DNA.  Senator Cynthia Creem took the floor and spoke in support of the bill.  She recognized Betty Anne Waters and the BBA for their contribution to this legislative effort, drawing members of the Senate to stand and applaud their work.  Seven amendments to the bill were then taken up.  Of those seven, two were withdrawn, one was rejected, and the remaining four were adopted.  When the roll call was taken, the bill passed 37-0.

It may have looked easy and effortless, but it actually felt chaotic.  The day before, Senate Ways & Means released the access to DNA bill with improvements and changes.  After reading through the revised bill, the BBA had a few suggestions and asked Senator Creem to file an amendment, to which she agreed.  On the morning of the scheduled Senate debate, other senators filed even more amendments to the bill.  These last minute amendments sparked discussions in the Senate hallways and on email.  Even in the moments before the start of the Senate session we were still trying to fix loopholes that the additions to the bill had opened up.

Then, finally…a signal from the Senate floor.  A senior Senate staffer looked towards the gallery and flashed a thumbs up. Just like that, it was over.  The bill had passed unanimously, capping off a monumental afternoon for those who had labored for years on this issue.  While pausing to take in what had just happened, it was nice to see the House sponsor, Representative John Fernandes, waiting one floor down outside the Senate Chamber.  Rep. Fernandes indicated that he is looking forward to taking this issue up on the House side once the legislature comes back from its summer recess.

 

-Kathleen Joyce

Government Relations Director

Boston Bar Association

Comments are disabled for this blog.  To share your comments e-mail issuespot@bostonbar.org

 

Leave a comment

Filed under Uncategorized