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The recent case of O’Shea, et al v UPS, which went to the federal 1st Circuit Court of Appeals shows the importance of carefully reviewing retirement plan options when retiring. In this case the employee, Mr. O’Shea who had worked for the company for 37 years, was diagnosed with cancer and then the following year decided to retire. His last day of actual work was Jan 10th but his final day of employment and official retirement date was not to be until then end of February. He chose an annuity payout for his retirement with 10 years of guaranteed payments which would continue to be paid to his children beneficiaries if he died within ten years of the beginning date of his retirement annuity which would have been March 1st. Unfortunately he passed away before March 1st and under the retirement plan provisions, since he was still technically an active employee, the retirement annuity would never be initiated and his beneficiaries were left with no benefits. Had he been survived by a spouse or domestic partner, he or she would have been entitled to some form of preretirement survivor’s benefit, but that was of no help since he had no surviving spouse or domestic partner. The Court stated: “Nowhere in the retirement benefits application, and at no point during his consultation with the HR supervisor, was it made explicit that surviving to the annuity starting date (i.e., March 1, 2010, the day after his official retirement date) was a prerequisite to the ten-year payment guarantee. It seems that O’Shea was therefore unaware he risked forfeiting the ten years of guaranteed payments to his beneficiaries by delaying his retirement date, especially while terminally ill.” The moral of the story: be careful with your retirement plan choices. Don’t just trust HR to know everything you need to know. Have your attorney or other trusted advisor go over the plan documents before you make any decisions on retirement payout options. Ask questions.

Judge Rules that Text Messages can Satisfy Requirement of “in writing” for Contracts
In the recent case of St. John’s Holdings, LLC v. Two Electronics, LLC a Massachusetts Land Court Judge has ruled that text messages can satisfy the statute of frauds requirement for written contracts relating to land. This is not binding precedent on any other Massachusetts judge and would not be such until it goes up on appeal and gets affirmed by a higher court (Appeals Court or SJC). Nevertheless it is illustrative of how one judge viewed the legal landscape of text messages. The judge in the case analogized the issue to email cases which interestingly started off giving short shrift to emails, but reversed direction over the years. The Seller of the land involved in the case in seeking to avoid the deal argued that texts are more in the nature of phone calls or voice mails where the speech is more spontaneous and seeking of an immediate response like the spoken word and less reliable and contemplative than say putting together a written offer or acceptance. Word to the wise: unless you are intending to be legally bound by what you say, avoid using text messages to communicate the terms of contract negotiations altogether, or be very careful to include a clear disclaimer about the intended effect of your text messages (which is hard to do with text messages, easier with e mails).

Property Acquired After Service of Divorce Complaint Is Considered Marital Property In the recent case of Valaskatgis v. Valaskatgis the Appeals Court held that although section 48 of the Alimony Reform act defines the “length of the marriage” as ending when the divorce complaint is served for purposes of the alimony provisions of that act, that definition does not change prior law defining the duration of the marriage for purposes of the division of property provisions of section 34 of Chapter 208. In this particular case it was ruled that almost $100,000 in overtime pay acquired by the husband in the form of overtime pay earned after the divorce complaint was served on the defendant wife was subject to property division under section 34 even though for purposes of determining alimony under the Alimony Reform Act provisions, the marriage was considered at an end when service of the complaint on the wife was made.
Court Decree Provision Requiring Mediation is Held Unconstitutional
In a recent case arising locally in Hampden County the Appeals Court has ruled that a court imposed condition in a divorce decree after trial requiring the parties to engage mediation at their own expense before filing any future actions involving the divorce decree violated article 11 of the Declaration of Rights of the Massachusetts Constitution.  The case is Ventrice v. Ventrice  decided on March 19th. In doing so the Court reasoned as follows: “This is an unconstitutional burden to the parties because it delays an objecting party’s right to file a complaint in our courts, and also because it forces the parties to bear a likely costly expense for court-ordered mediation services.  In particular, this precondition could discourage or even prevent one of the parties from seeking to modify the divorce judgment if a material change in circumstances or the best interests of the parties’ four children so required.  See G. L. c. 208, § 28.  Because the Probate and Family Court has exclusive jurisdiction in this area, see G. L. c. 215, § 3, the Ventrices would have no alternative forum in which to pursue such a claim.  In this light, we conclude that the amended judgment does precisely what art. 11 of the Declaration of Rights forbids, i.e., it chills the Ventrices’ right to freely petition the courts.” It is important to note that this was a provision imposed on the parties by the Court and not as a result of a mutual agreement of the parties adopted by the Court in its judgment.

Appeals Court Holds New Alimony Law on Effect of Retirement Inapplicable
In the recent case of Lalchandani v Roddy the Massachusetts Appeals Court held that the provisions of the alimony reform law concerning cession of alimony at retirement age do not apply to a case involving a settlement agreement that predated the new law and by its terms was not merged into the divorce decree but survived as an independent contract which provided that as to alimony was not modifiable.  Be sure to know the significance of agreeing to a settlement which is merged into a court decree or which is to survive as an independent contract.
Appeals Court Upholds Judge’s Refusal to Enforce Prenuptial Agreement  
In the recent case of Kelcourse vs. Kelcourse the Appeals Court upheld the trial judge’s ruling that a prenuptial agreement executed before a twenty year marriage was not to be enforced based on failure to survive the “second look” criteria required by Massachusetts law. This case is very fact specific both to the provisions of the agreement and the events that transpired in the marriage itself. Although the agreement may have been fair and reasonable when it was executed, it was held not to be so at the time of the divorce some twenty years later. Suffice it to say that the agreement provided that in the event of the divorce the wife was to get whatever marital residence they had purchased, no matter whose name was on the title. And suffice it to say that the actual marital residence had been purchased and highly leveraged with debt in anticipation of substantial repairs and renovations that were never done leaving a property arguably with negative equity while the husband removed to a marina residence worth in excess of $1.0 million supposedly debt free, according to the reported opinion of the case. The moral of the story is that even if a prenup looks good on the face of it, looking behind it at the actual facts may render it unenforceable.
Probate Court Sets New Procedures for Health Care Proxy Disputes
As of July 1, 2014 new procedures and new forms have been established by the Probate and Family Court to provide expedited hearings in cases involving health care disputes in the areas limited by the provisions of Mass General Laws Chapter 201 D. The hearing must be set within ten days and the petitioner has the burden of providing at least 72 hours notice to interested parties.   The procedure requires a physicians certificate that the principal’s condition (mental competence or ability to communicate) has triggered the proxy and that an attorney be appointed by the Court immediately in every case to represent the principal. Given the fact that the procedure appears to exclude ex parte proceedings, it is doubtful that the procedure could be used in connection with a request for the issuance of an injunction or emergency ex parte temporary restraining order.
Carefully Review Terms of Online will “Guarantees”    We just happened across a web page where one major provider of online will services offers a “guarantee” with its low priced online wills. After looking closely at the terms of this guarantee,  it became clear that it only covers the situation where your will is ultimately found by a proper court to be invalid solely because it was created online  through an internet website, and for no other reason. Well, that is a pretty safe bet. The likelihood of that happening is zero to none. There is no requirement, at least in the state of Massachusetts, that a will cannot be self prepared by someone either online or through non cloud software purchased for use at home. The bulk of the problems with internet and other do it yourself wills comes from them being improperly signed or having invalid or vague provisions. Non lawyers have little knowledge of either of those issues and the likelihood of such a will being found invalid in whole or in part would most likely be there or for reasons of lack of capacity, fraud, forgery, or undue influence, and this guarantee by its terms covers none of those situations. Of course the online service couldn’t be liable for such things because they never get directly involved with the signing of the will and have no knowledge of the person using the site or any factors that might indicate undue influence.  Only a real live lawyer can help you there. And since the real live lawyer doesn’t enjoy the volume of wills that the online service does, has to maintain an actual office to meet with clients and have them sign the wills, provide witnesses and procedures for proper execution of the will AND actually undertake liability for the professional service involved, of course they must charge more than the online services.  This particular service at present also, believe it or not, actually claims that it reserves the right to change the terms of the guarantee unilaterally at any time by posting new terms on its website.  We lawyers certainly don’t have the luxury of changing the terms of our responsibility to clients after the fact, nor do most other reputable professions and businesses. Who would you rather trust with a document as important as your will?
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