Alaska requires the well being of the pet to be considered in divorce

Washington Post reports that Alaska has become the first state to require courts to take into consideration the well being of the animal in divorce.  Judges now have the power to award joint custody.  This is truly ground breaking because all other states treat animals in the same way furniture is treated, and pets are simply part of the property distribution.  We hope more states follow suit. 

Pre-Nups Should Include Pets

The Boston Globe reports that disagreements over pet custody are on the rise. Approximately 27% of divorce lawyers surveyed have seen an increase in pet custody fights over the last five years.   Because the law considers pets property, in the event of a divorce, courts do not consider what is in the best interest of the pet.  It just does not matter who spent more time with the pet or who took more responsibility.  Some courts require the litigants to negotiate a resolution, making the animals easy fodder for emotional manipulation. To avoid this heartache, you can create a prenuptial agreement to cover your four legged family members.  This terms of the document will be enforced in the event of a divorce.   One person quoted in the article stated  “If somebody wasn’t willing to sign one, they’re probably not the best person for me.” 

Siblings With Dueling Deeds

Could your family situation be any worse?  Imagine the Thanksgiving dinners.  Take the situation of these six siblings.  In July 2001, Harold secures a deed signed by his mother Ethel giving him the family home.  He records the deed.  In November 2001, Ethel signs another deed transferring the family home to a trust, with daughter Deborah and herself as the co-trustees.  Ethel reserves a life estate for herself.  That deed and trust are recorded a few months later.  In the many estate plans created by Ethel, sons Harold and Lawrence were always excluded because they were provided for through a prior gift of the family oil business.  The other four children were to inherit the remaining estate.  Ethel's last will is in 2008, and she continues to exclude Harold and Lawrence specifically because of the lifetime gift of the business.  Ethel dies in December 2009, and shortly thereafter, Deborah learns of Harold's claim to the family home.  Her lawsuit is filed in January 2010.

Today, in Allen v. Allen, 13-P-605, the Appeals Court in Massachusetts affirmed the Land Court Judge's determination that the first deed was defective, and title to the property is held in the name of the trust. The case was one of first impression and dissects the recording statute, G.L.c. 183, Section 4.  Key to the findings was the fact that the attorney and notary of the first deed could not remember Ethel being before him to sign the deed, and after evidence indicated that Ethel may not have been in the state at the time it was signed, he agreed that the date and place on the notary acknowledgment might not be accurate.  In a 23 page decision, the court determined that even though a notary acknowledgement is not required for a deed to be valid, it is required to record the deed.  Because of the defect in the certificate of acknowledgement, the recording was in error and the deed did not provide constructive notice to the world of its existence.  Harold was unable to prove that Deborah had actual knowledge of the transfer, and the court refused to impute knowledge.  The subsequent deed was held to be valid.

There are many take-aways for lawyers from this case.  A simple online title search at the time of recording the November deed would have alerted her children to the July deed while Ethel was still alive.  The take away for clients: parents beware - you run the risk of estate disputes when children are treated differently.  Any hoped for harmony is nearly impossible without thoughtful discussion about succession and transparency while you are alive.

Appeals Court Affirms Award of Veterinary Expenses for Injured Dog, but Extends Prohibition of Emotional Distress Damages.

The appeals court affirmed a lower court award of veterinary expenses to owners trying to save their small dog after an unprovoked attack by an unleashed German shepherd.  The Bichon Frisé had severe internal injuries and external wounds requiring emergency surgery to the tune of $8,000. In addition to vet costs, the court also awarded the replacement value of the dog. Because Massachusetts law considers dog personal property, the owner of the German shepherd argued that damages should be capped at the market value of the dog, regardless of the reasonableness of the veterinary costs necessary to treat the dog's injuries. See Irwin v. Degtiarov. The appeals court found that reasonable veterinary costs can be recovered even if they exceed the market value or replacement cost of an animal injured by a dog. Whether particular veterinary costs are reasonable, and whether it is reasonable to incur them, will depend on the facts of each case.  Among the factors to be considered are the type of animal involved, the severity of its injuries, the purchase and/or replacement price of the animal, its age and special traits or skills, its income-earning potential, whether it was maintained as part of the owner's household, the likelihood of success of the medical procedures employed, and whether the medical procedures involved are typical and customary to treat the injuries at issue. Once again, the appeals court affirmed that although the owner's affection for the animal may be considered in assessing the reasonableness of the decision to treat the animal, the owner cannot recover for his or her own emotional distress. Nor is the owner entitled to recover for the loss of the animal's companionship. An earlier appeals court case stated that emotional distress damages were not available because in that case the owner did not witness the damage. See Krasnecky v. Meffen.  Despite not being a question in this present case, the court suggests even if an owner witnesses the attack, he or she cannot get emotional distress damages.  The Supreme Judicial Court has yet to take up this question, but this ruling seems to close the door on the possibility of emotional distress damages.

LGBT News - Qualified Retirement Plans Post Windsor

The IRS has release long awaited guidance to administrators to qualified retirement plans. See Notice 2014-19 .  All qualified retirement plans  in states where same sex marriage is recognized is must recognize that marriage for retirement plan purposes no later than June 26, 2014, the date of the Windsor decision.  As of September 16, 2013, all plans must recognize valid same-sex marriages regardless of whether the participant’s state of domicile recognizes the marriage. The September 16 date is when the IRS released a ruling stating that spouse, husband, wife, and marriage for purposes of the Internal Revenue Code have to be interpreted to include same sex marriages.  See  Rev. Rul. 2013-17.  Given the Obama administration's unwillingness to extend itself on same sex marriage during his first term, the pace of change in the second term is breath taking. 

Big Win for Non Human Animals

The Massachusetts Supreme Judicial Court announced today that in an emergency the police can enter private property to protect the lives of non-human animals. The case is Commonwealth v. Duncan , SJC-11373 (April 11, 2014).  The case involves a Lynn woman who let two of her dogs freeze to death outside and fought an animal cruelty conviction by claiming the police had no right to enter her property to rescue the third, still breathing, dog.  The court found that the emergency aid exception to the requirement of a search warrant permits the police in certain circumstances "to enter a home without a warrant when they have an objectively reasonable basis to believe that there may be [an animal] inside who is injured or in imminent danger of physical harm." It moderated that finding with the statement that "the reasonableness of the search must be determined on a case-by-case basis upon consideration of the totality of the circumstances". Massachusetts joins other states in recognizing "a public interest in the preservation of life in general and in the prevention of cruelty to animals in particular.how society values animals". Congratulations to Essex Assistant District Attorney Paul C. Wagoner who did an excellent job arguing this case before the court.

Glickman Turley LLP represents animal welfare nonprofits and others interested in animal welfare.

IRS Releases Guidance for Employers and Same Sex Couples post DOMA

The Internal Revenue Service has just released guidance for recovering excess taxes paid by employers and taxpayers in light of the Windsor decision.  Windsor was the decision in which the Supreme Court held that the federal government cannot treat same sex married couples differently than opposite sex married couples. See United States v. Windsor, 570 U.S. ___, 133 S.Ct. 265 (2013). In Tax Notice 2013-61 the IRS provides special administrative procedures that can be used by employers to claim refunds or make adjustments of overpayments of employment taxes paid with respect to same-sex spouse benefits for 2013, and also a special administrative procedure that can be used with respect to overpayments of FICA taxes for years before 2013. It also informs taxpayers that they can file Form 1040X to make claims for overpayment of income taxes in past tax years.  Note that not all married same sex couples will be better off.  Tax savings will likely only benefit those couples in which one spouse earns significantly more income than the other. 
  

Same Sex Parent Adoption Post DOMA

Will same sex married couples in Massachusetts still need to file an adoption petition even though both parents are on the original birth certificate?  How risk adverse are the parents?  The Supreme Court today did not strike down Section 2 of DOMA, which  allows States to refuse to recognize same-sex marriages performed under the laws of other States. See 28 U. S. C. §1738C.  Therefore, if you are named in your child's birth certificate because you were married in Massachusetts at the time of birth, there is still no prohibition against other states determining that since your parentage was based on a marriage status that it does not recognize,  it will not recognize your status as a parent. Or, what if you divorce and the biological parent moves to a state that does not recognize same sex marriage and tries to revoke the rights of the non-biological parent.  Remote?  Sure it is.  We will see how this plays out.  Co-parents contemplating travel or a move to a state that does not recognize gay marriage - beware!  Call Glickman Turley at 617.399.7770 for more information or to start your co-parent adoption petition.

The Irony of DOMA

In the majority opinion striking down the defense of marriage act,, the court debated whether the issue was properly before the court given that the Attorney General refused to defend DOMA in court.  The House of Representatives had formed a group called the Bipartisan Legal Advocacy Group (BLAG) to vigorously defend the constitutionality of the law and appear in place of the attorney general before the court.  The court stated that had BLAG not come forward to defend the law, thereby providing a substantial adversarial argument for a finding of constitutionality, the court might have declined to review the lower court decision. Ironically, the arguments by the very group that sought to prevent the court from finding DOMA unconstitutional, gave the court a hand up in finding DOMA unconstitutional.

Today the court declared: "DOMA’s principal effect is to identify and make unequal a subset of state-sanctioned marriages. It contrives to deprive some couples married under the laws of their State, but not others, of both rights and responsibilities, creating two contradictory marriage regimes within the same State."

The Supreme Court has told the federal government it cannot discriminate.  It is time for the remaining states which prohibit gay marriage to end discrimination.  These states will rise, one by one.

For same sex couples, the implications are enormous.  It will impact estate planning, real estate, probate, inheritance rights, criminal matters, immigration issues, social security, and hundreds, if not thousands of federal laws which provide special considerations to married couples.  If you would like us to investigate how it will make a difference in your case, please call Glickman Turley at 617.399.7770.

The DOMA decision can be found here:  UNITED STATES v. WINDSOR, EXECUTOR OF THE ESTATE OF SPYER, ET AL., No. 12–307.