Our Practice Areas
We are a general Massachusetts practice of law with emphasis in:
- Child Support
- Division of Property
- Prenuptial Agreements
- Postnuptial Agreements
- Restraining Orders
- Never-Married Agreement
- Grandparental Visitation
- Removal of Children out of State
- Probate and Estate Litigation
- Same Sex Couples
Conflicts between individuals in a marriage or other personal sharing relations are subject to resolution by the Probate and Family Courts within the Massachusetts Court System.
The particular Court is usually determined by the location of the individual residence of the parties and/or where they last lived together.
A Divorce is the dissolution of the marital relationship.
If there are children, the Custody of the child (or children) is determined by the Court or by the Agreement. Custody may be either Physical or Legal. Legal Custody allows one or both parents to decide for the minor children (under 18 years of age), his or her schools, medical care, and religious affiliation. Physical Custody places the child in the home of one of the parents during a specified time. Physical Custody may be sole or shared.
The Hague Convention is an international treaty for the protection of children form abduction and retention across international boundaries. It provides a procedure to return the child or children to the proper foreign jurisdiction. It is the country which is the child’s “habitual residence.”
Our office provides legal representation to parents seeking the return of their child from a foreign country or the parent opposing the return of the child.
The Court, usually the United States District Court, determines the following:
- When the removal or retention took place.
- The child’s habitual residence, prior to the date of removal.
- Determine whether or not the petitioner had “rights of custody” and whether or not he or she exercised those rights at the time of removal.
- Whether or not the removal or retention of the child is a breach of those custodial rights.
- Determine whether any exceptions apply: such as consent, acquiescence, the child’s objection, the child is well settled for one year, human rights exception and/or if there is a grave risk to the child in returning the child.
- If an exception applies, the Court must determine whether to exercise its discretion not to return the child to the foreign country.
Annulment of a marriage means the Court declares the marriage never existed. There are two main types of cases that qualify for annulment:
The Void Marriage:
The couple is brother or sister (incestuous relationship); or
One member of the couple is already married to another person (bigamy)
Some marriages are not automatically void, but may be annulled by a Court provided there is sufficient evidence. Here are some examples:
Prior to the marriage one member of the couple lied relative to a fundamental circumstance. A woman induced a man to marrying her without disclosing she was pregnant by another man;
Prior to the marriage, a man failed to tell a woman that he is permanently physically unable to have sexual relations;
One member of the couple is so mentally ill that he or she was unable to understand that the marriage was taking place an unable to consent to it;
One member of the couple conceals from the other that he or she married solely to gain favorable immigration status in the United States;
Prior to the marriage, either member of the couple fails to disclose he or she has a serious contagious disease.
Extreme caution is necessary before filing a Complaint for Annulment.
Visitation is the designation of the time and place for parents to visit with and receive visits from the child and/or children.
Grandparents may request Court Ordered visitation with his or her minor and unmarried grandchild only if the child’s parents are: (1) Divorced; (2) Married but living apart, under a Temporary Court Order or Judgment of Separate Support; (3) one or both parents are deceased; OR NOT married to each other and not residing together, and the paternity of the child has be adjudicated by a Court or by Voluntary Acknowledgment with respect to paternal grandparents, but not required for maternal grandparents AND the child has not been adopted by anyone other than the stepparents.
The Grandparent files with the Court a Complaint and Affidavit which contains detailed facts, in the County where the divorce, separate support or paternity Complaint was filed or, if such a Complaint was filed in another County, the Complaint for Grandparent visitation must be filed in the County where the Grandchild lives.
The Court presumes that the parent is fit and that his or her decision regarding the child’s visitation with the Grandparent is in the child’s best interest.
The Grandparent must rebut the presumption by proving that the decision of the of a Judge to deny visitation would not be in the child’s best interest and the Grandparent must prove that the failure to grant visitation will cause the child significant harm by adversely affecting the child’s health, safety or welfare.
The Court may interfere with the parent-child relationship only to prevent harm or potential harm to the child. The Court does not recognize loss of the typical and usual Grandparent relations as “significant harm.”
Alimony is a Court Order requiring one individual to pay the other individual a sum of money for their support while the individual couple is separated. This payment may be Ordered or agreed to during and after the divorce.
Property Division – Massachusetts is an Equitable Distribution of Marital assets state. Marital property includes real estate, antiques, automobiles and may include inherited property and/or gifts.
Health/Medical Insurance – The Court is obligated to provide a provision in the Judgment for health insurance.
Modification – After the Judgment is entered by the Court, the Court may modify or change the Judgment (Agreement), if the individual is able to demonstrate a material change in circumstance. For example, a support order may be modified or changed, if there is an increase or decrease in income.
Contempt – A Judgment of Contempt may be issued against an individual who was ordered to pay alimony, child support, or was ordered to do some act. If the individual did not act as ordered by the Court, he or she may be held in Contempt.
A Pre-Nuptial Agreement is a written contract between individuals prior to their marriage, which recites their assets and liabilities. It establishes the division of the assets and liabilities as well as addresses alimony, if the individuals divorce. For the Pre-Nuptial Agreement to be enforced, it must be fair and reasonable at the time it is signed as well as fair and reasonable when the individuals divorce.
Mediation – For further information please visit www.MarkBersonMediation.com