Divorce and the Military: It gets complicated

Divorces are not easy. It leaves the couples to separate a life that they had worked together to create.  Divorce becomes more complicated when it involves military families. Both partners in a military family experience sacrifice, whether it’s the person providing the service for our country or the person that stays home to provide the support. Some of their sacrifices are the constant moving of the family or feeling like single parent families while one member is deployed t.  The support and willingness to move is often why it becomes difficult to divide the assets -- both parties feel entitled.  Although military personnel are respected and often cherished people in our community, they subject to the same difficulties and issues as others when it comes to divorce. But military families are subject to different procedures throughout their divorce, such as where to file, which state most provides the best outcome, and domicile for children involved.  

One of the first questions that needs to be answered when a couple is getting a divorce is where should I file for a divorce? This is especially important for a military family that might be stationed overseas or in another stated with different rules and regulations. The first thing that needs to be established to know where to file for divorce is domicile and residence. Domicile is important for because one of the parties must call the sate “home” for legal residence purposes for the divorce to be valid[1] .  A domicile is the place of someone’s true, fixed, permanent home and principal establishment, a place to which a person, whenever absent, has the intention to returning. Some helpful documents which lawyers use to help establish domicile are: moving the whole family to the state, declaring his residence in the state on documents such as wills, deeds, mortgages, leases, contracts, insurance policies, declaring his residence in the state in affidavits or litigation, paying income and personal property taxes to the state and county, purchasing land, or home in the state, leasing a home in the state, registering his vehicle in the state, obtaining a driver’s license in the state, marrying in the state, providing that address on his federal income tax return [2]. Although this list is not exhaustive, it provides a good starting point for those who are unsure about how to acquire domicile, and to discuss with your attorney when deciding where to file for divorce.

Being in a military union allows the non-service spouse to acquired special privileges, legal rights and entitlements, however, these rights are lost once there is a separation. Once the divorce process begins the separation of assets also starts, and one of the most important assets which will be divided in the pension and retirement plans. Another significant issue that arises is whether military personnel retirement accounts are considered assets to divide between the military spouse and the non-military spouse. 

Retirement pay was not always a divisible asset in military divorce. In 1982 Congress passed the Uniformed Services Former Spouses’ Protection Act (USFSPA)[3]. USFSPA allows the states to divide military retired pay in divorce and equitable distribution proceedings. The act leaves it to the state to decide whether military retired pay is marital or community property that is divisible upon divorce or whether it is solely the property of the service member[4]. This is another important factor in determining jurisdiction when trying to decide where to file for divorce. Because the USFSPA leaves it up to the state most service member will try to use domicile as a defense preventing the non-service spouse to receive pension benefits. One way to avoid this issue is if the service member waives and agrees to divide the pension, however, the issue then becomes on how to divide the pension.

A divorce can become even more difficult when there are children involved, especially when one of the parents is a service member and can face deployment at any moment. Although it is difficult determining who will get custody of the children, especially when one parent is on constant move due to his service duty, there is no definite law that states the non-service member will get custody. Most courts will always focus on the best interests of the child as the parents conduct. Every court and every state handle it differently, however it will be very beneficial for a parent seeking custody to be demonstrate consistent care for the children and a willingness to make adjustments and sacrifices that custody involves. Any and all information can prove helpful during this stage – it is more then okay to state that you will be receiving help from others (whether it’s a new spouse or other family members) to help achieve the care and consistency for the children. Even if one parent does not get custody they could be entitled to visitation rights and it is then important to draft a visitation schedule which includes both a local and long distance schedule in case of the service member parents deployment or relocation[5].

Although divorce is a separation it should never be tackled alone, especially when it’s a military divorce. This separation brings about lots of changes like losing special privileges for the non-service member spouse such as living on base or health care. It is always important to have a support system in place like friends and families. The legal process of the divorce is also very complicated and it’s important to obtain legal assistant from someone that is experienced with military divorces, in order to make this process as less painful as possible.

(Written by our intern Alba Contreras.) 

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[1] The Military Divorce Handbook: A Practical Guide to Representing Military Personnel and Their Families 2^nd ed., Mark E. Sullivan

[2] Id. At 401

[3] Id. At 483

[4] Id. At 484

[5] Id. At 139

E-Discovery is Coming to Massachusetts

On September 24, 2013, the Supreme Judicial Court of Massachusetts adopted the amendments to the Rules of Civil Procedures that addressed discovery of electronically stored information.  This new amendment, which will take effect on January 1, 2014, enables parties and the court to deal with e-discovery during the early stages of litigation.[1] The Reporter’s Note states, “the driving force behind the decision to consider rules for electronic discovery in Massachusetts is the staggering growth of information in electronic form today.”[2]  To create this amendment the Standing Committee drew on two primary sources: the 2007 amendments to the Federal Rules of Civil Procedures that addressed electronically stored information and the 2007 Uniform Rules Relating to the Discovery of Electronically stored information.[3]

So what exactly does electronic discovery refer to?  The SJC is referring to e-mails, web pages, word processing files, computer databases, audio, video recordings, voicemails and virtually anything that is stored on a computer.[4] With this new addition to the discovery process also brings along the same issue that occurs with paper discovery plus some that are specific to e-discovery. [5] For example, one of the major issues of incorporating electronic information is the sheer volume of this type of information.[6] In this day and age, e-mail has now replaced other forms of communication.[7] Many informal messages that were once sent by telephone are now sent via-email.[8] The problem with this is that computers have the ability to capture several copies of that e-mail that was sent; which creates massive volumes of documents.[9]  When comparing the sheer volume of data with conventional documentation, it can be quite astounding.[10] For instance, one gigabyte is equivalent of 5000,000 typewritten pages.[11] Large corporate computer networks create backup data measured in terabytes, or 1,000,000 megabytes; each terabyte represents the equivalent of 500 billion typed written pages of plain text.  With the ability to store information electronically, many companies have little to no incentive to reject the information. [12]

Because of the new e-discovery guidelines, attorneys will now have to scan those multiple e-mails for relevant and privileged information.[13] The new guidelines create a provision, in which a party is required to return information that is mistakenly produced, if it’s privileged or work-product-information.[14] This provision requires the party notify the other party and return, sequester, or destroy the information at the party’s request.[15]

            But there are some benefits to the new discovery amendment. For instance, because huge amounts of information can be store on compact disks or flash drives, transporting the large amounts of information will no longer be as expensive or difficult.[16] Attorneys requesting such documents will no longer have to worry about the travel expenses associated with gathering hundreds of boxes of documents.[17] With the new discovery process, an attorney can now review the documents from the comforts of his or her office. [18]

           

            In addition, the changes allow for the court to limit the frequency or extent of the discovery. The amendment permits a party the ability to object on the grounds of inaccessibility, but that party has the burden of proof.[19]  Inaccessible electronically stored information is defined in the amendment as, “electronically stored information from sources that the party identifies are not reasonably accessible because of undue burden or cost.”[20] The court can overrule this objection, if the requesting party can show “that the likely benefit of its receipt outweighs the likely burden of it production, taking into account the amount in controversy, the resources of the parties, the importance of the issues, and the importance of the requested discovery in resolving the issues.”[21] Because the new rule allows for the scope of discovery to be  “any matter, not privileged, which is relevant to the subject mater involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party,”[22] this objection can be very helpful to keep or limit the scope of discovery. 

            Furthermore, with the Supreme Judicial Court now expanding the scope of discovery to electronically stored information, parties will either find this helpful or more burdensome. Electronic discovery brings along the same issues that paper discovery welcomes, along with a few other challenges, but by using some of the following steps, one can limit the expenses of e-discovery.

• ·         Discovery requests can be more narrowly-tailored[23]
• ·         Figure out if larger volume of electronic evidence is worth the cost, and which party should bay for it [24]
• ·         Create a document retention policy[25]

Long story short -- There is a lot of reading for us all to do between now and January 1, 2014.  Make sure you are up to date with the new statute.  

(For that reason, I have included footnotes.  Hopefully you find them helpful!)    

Written by our intern Taurean Green

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[1] Mass. R. Civ. P. 26(f).

[2] Mass. R. Civ. P. 26 reporter’s notes.

[3] Id.

[4] The (2004) Sedona Principles: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, 5 SEDONA CONF. J. 151 (2004).

[5] 43. Mass. Prac., Trial Practice § 7.11 (2d.ed.) Some experts estimate that business and individuals now create more than 200 billion e-mails per day and that the volume of electronic information grows at a rate of up to 60 percent per year.  Electronic Discovery. In Massachusetts Discovery Practice (MCLE, Inc. 2002 & Supp. 2005, 2009.)

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Manual for Complex Litigation, Fourth, § 11.446

[11] Id.

[12] E-DISCOVERTY AND INTERNET/SOCIAL NETWORKING DISOCOVERY, DISCPI MA-CLE 14-2.

[13] Supra note 1

[14] Id.

[15] Id.

[16] Supra note 12

[17] Id.

[18] Id.

[19] Mass. R. Civ. P. 26(c).

[20] Id.

[21] Id.

[22] Id.

[23] Mohammad Iqbal, The New Paradigms of E-Discovery and Cost-Shifting Determining Who Pays for Electronic Discovery, 72 Def. Couns. J. 283 (2005).

[24] Id.

[25] Id.

4 Cases that are Quintessentially Boston

Boston has that special something.

Whether it's a certain cockiness in our sports franchises (Congratulations Red Sox!), the comradely the entire city seems to share, the history that walks hand and hand with the modern, or simply that the Prudential also confirms your iPhone's weather app, there is just something about this town.  Bellow are five interesting cases that all share the undefinable aspect of Boston.

 

1) Priscilla D. Webster v. Blue Ship Tea Room, Inc., 347 Mass. 421 (1964).

It's a case about  chowder.  What is more Boston, MA then clam chowder?  Sure, you may have some upstarts trying to claim that Manahttan chowder is new vogue, but don't trust them.  And really, is chowder from any other state as good?  Union Oyster house has been shelling pure delicious since 1636 -- you really can't beat that record. But I digress-- this case is about fish chowder.

You see, plaintiff wished to order clam chowder, but Blue Ship Tea Room was all out.  And so, in Webster v. Blue Ship Tea Room, we have a legal argument that surrounds how big chunks of fish can be in chowder.  Personally, I say the bigger the better -- and this judge tends to agree!  While plaintiff was eating her fish chowder, she couldn't swallow because something lodged in her throat (spoiler alert-it was a fish bone.)

The end of this case simply dictates, with regard to fish bones at least, Chowah at your own risk. A chef is not obligated to chop fish bits so finely that a bone cannot possibly enter the chowder.  But I'll take big chunks of fish in my chowder any day, even if it means being on the lookout for fish bones.

2) Anderson v. Dunkin' Donus, INC., 60 Mass.App.Ct. 1126 (Unpublished)

To be fair, Boston is not the only place that runs on Dunkin'.  I know I need my afternoon coffee around 2:00, otherwise things start getting hazy.  But for this case, things get hazy for the plaintiff during a bar fight, at which point the plaintiff moved to include the local Dunkin' Donuts in the complaint.  However, the judge nixed that idea, pointing towards the lack of proof that the plaintiff was able to provide demonstrating that Dunkin' Donuts even controlled the property.

And a bar fight is always more interesting then a franchise dispute.  (Boulanger v. Dunkin' Donuts, Inc., Dunkin' Donuts of America, Inc. v. Minerva, Inc.)

3) Commonwealth v. Hodgkins, 170 Mass. 197 (1898)

Boston has always been serious about its lobster, evidenced by this 1898 case.  In fact, there is a penalty for selling, offering for sale, or having in possession of lobsters that have been stolen.  In a valent effort to avoid conviction, Mr. Hodgkins argued that the larceny of a live lobster is different then the possession of a dead one.

4) Frate v. Jordan's Furniture, Inc., 74 Mass. App.Ct. 1126

And finally, where would we be without a Red Sox Case. Here we have, what I'm sure many of you remember, the Jordan's Furniture Promise.  If you buy any piece of furniture during the sales promotion, they would be free if the Red Sox won the 2007 World Series.  I knew several people who gambled on the Red Sox that year, and it certainly worked out for them!  Gone is the curse, as the Red Sox have sealed the deal for an additional two world Series since the historical 2004 World Series Game.

Here, to continue celebrating the Red Sox, Frate accepted not only a check for the total reimbursement of his purchase, but sued for treble the amount under the theory that it was a "lottery" as a matter of law. However, there is too much of a good thing and Frate was unsuccessful, as nothing in the statute suggests that the promotion, where customers paid for furniture, "paid for their chances" as requires to become a lottery.   Better luck next time.

There are undoubtedly many more cases that capture that special Boston "it" factor.  Feel free to suggest some in the comments below, share your own Boston story, or just generally cheer on your favorite local team.