What Are Restrictions On Transfer Of Property Of Married Persons?

Tue, 29 May 2007 21:19:00 GMT

The Homesteads Act defines "homestead" as " residence&occupied by the (married) owner the owner's spouse as their home&" and gives a surviving spouse a life interest in such property.

No homestead property may be transferred or mortgaged by one married person to a third party without the consent of the other spouse, unless a consent to such disposition has been obtained in required form or a court order dispensing with consent has been obtained, which release or court order must be registered in the land titles office in which such land is registered.

Dealing with land subject to the Homesteads Act involves affidavits and formalities that usually require the services of a lawyer.

At What Point Are People Who Live Together Considered By Law To Be Spouses?

Tue, 29 May 2007 21:19:00 GMT

People of opposite sexes who live together, not married to each other, may be considered spouses:

under the Family Law Act, if they have been living together for five years less if they have a child together;
under the Income Tax Act, if they have been living together for one year;
various employee benefit plans will determine the criteria for applicability of health, dental and insurance plans to commonlaw spouses.

Can An Order For Access Be Enforced?

Tue, 29 May 2007 21:19:00 GMT

Pursuant to The Child Custody Enforcement Act, either a custodial or a noncustodial parent can apply to the court for enforcement or change of an access order. In the course of such application, the court may make an access enforcement order that is appropriate in the circumstances, and it may:

where access may have been denied, hold a person at fault in contempt of court and impose a fine of up to $500.00 or imprisonment for not more than six months, or both;
may require the respondent to reimburse the applicant for any reasonable expenses actually incurred as a result of the wrongful denial of access;
may require supervision of the access where the court is satisfied that a person or agency is willing and able to provide proper supervision;
where a person has wrongfully failed to exercise access or return the child as the order requires, order the respondent to reimburse the applicant for any necessary expenses incurred as a result of the failure to exercise the right of access or duly return the child, including costs of the application and/or require supervision of the access where such supervision is available.

Can Parents Make Their Own Agreement For Custody Of And Access To Minor Children?

Tue, 29 May 2007 21:19:00 GMT

Where both parents can agree, they may enter into a written agreement with regard to which parent will have the custody control and education of minor children and with regard to access arrangements for the noncustodial parent or they may agree to share parenting in a mature and responsible manner and agree on a form of joint custody, usually providing for a child to have it's principal residence with one parent, significant custody and sharing of upbringing responsibilities to the other parent, depending on the respective circumstances, and the financial and other contributions each parent will provide for the child's benefit.

Could A Parent Be Prevented From Having Access To A Child?

Tue, 29 May 2007 21:19:00 GMT

If a parent was involved in child or spousal abuse, or was for any good reason a risk to a child's physical or mental wellbeing, access could be ordered restricted to close supervision or, in extreme cases denied entirely.

If A Parent Was Denied Custody Or Refused Or Restricted As To Access To A Child, Could That Be Changed?

Mon, 04 Jun 2007 21:51:22 GMT

Yes. If circumstances changed significantly so that it would be in the best interests of a child to change existing custody or access arrangements, application could be made to court for any changes to be ordered. Often, a court, when deliberating to make an order, will anticipate the possibility of such changes being required and may make any such order subject to periodic review by the court so that it can implement any changes necessary for the best interests of a child.

If A Parent Who Has Custody Wants To Move From The Present Residence, With The Child, Can That Parent Do So?

Thu, 01 May 2008 16:24:21 GMT

If the parent wishing to move has good reason and it would generally be in the good interests of a child, such a move will generally be permitted. If the noncustodial parent opposes such a move, the parent having custody would have to show that any loss of opportunity to visit with the other parent would be outweighed by the benefits to the child in moving.

In Any Marriage Or Family Breakdown Situation, Or The Death Of A Surviving Or Sole Effective Parent, How Is It Determined Who Is Entitled To Custody Of Children?

Tue, 29 May 2007 21:19:00 GMT

The main concern of the courts and authorities operating under the law is what is in the best interests of the children. Factors looked to reach that determination may be:

the safety of the child;
the age of a child;
who has been the nurturing parent to the time of consideration;
what are the educational, guidance and other needs of the child and who is best able to provide these;
the moral environment of the child;
who can provide support;
whether the care of the child be responsibly shared by separating spouses;
with respect to an older child, the preferences of the child;
if the child has had medical, behavioural or other problems, in what arrangement these can best be dealt with;
what support is available from extended family and social services.

Where both parents can agree to share parenting in a mature and responsible manner, a form of joint custody may be agreed on in writing or worked out in the course of court assessments and conferences with the parties, usually providing for a child to have it's principal residence with one parent, significant custody and sharing of upbringing responsibilities to the other parent, depending on the respective circumstances, and the financial and other contributions each parent will provide for the child's benefit.

In Massachusetts, can a Spouse Give Up His or Her Right to Alimony in a Premarital Agreement?

Sun, 12 Jul 2009 01:32:15 GMT

It depends. Massachusetts statutory law is currently silent on this issue. However, Massachusetts courts have ruled on it. While there is no hard and fast rule, it seems that Massachusetts courts consider the fairness to both spouses and the length of marriage when they decide whether or not to honor premarital agreement provisions that modify or eliminate spousal support.

What Determines Accessibility To A Child By The Parent Who Does Not Have Custody?

Tue, 29 May 2007 21:19:00 GMT

Again, the best interests and needs of the child will govern the decision of the courts and authorities. Similar factors to the ones looked at in a custody question will be considered in an access situation.

What Do Such Agreements Usually Include?

Tue, 29 May 2007 21:19:00 GMT

Cohabitation or marriage agreements usually include:

what kinds of financial contribution each partner will make to support the other;
what contributions each will make to their residential or other property;
what amount and kinds of contributions each partner will make in personal effort for the benefit of the other;
what insurance one partner may provide to protect the other;
what employee, pension or investment benefits one partner may provide to include coverage for the other spouse;
what provisions one partner shall make and keep in force for the benefit of the other partner by will, whether to provide money or specific assets;
what undertakings each party will make with respect to providing for children of the partners, or of either of them, over and above the requirements of the law;
which, or how much of such provisions will continue to be enforceable after any separation of the partners or divorce.

Any marriage or cohabitation agreement is subject to review and/or rescission or amendment by the court, particularly if:

the interests of children would otherwise be adversely affected;
a provision or provisions would be unfair or unduly harsh on the party seeking change;
the party seeking relief could be found to have acted undue pressure or influence;
the party seeking relief had insufficient disclosure of facts or lack of legal advice, which would have precluded such party entering into the agreement.

What Happens On Separation?

Tue, 29 May 2007 21:19:00 GMT

On separation all sorts of questions arise involving obligations and possible rights of the husband and wife, including:

right to remain in the matrimonial home, with contents, regardless of ownership;
division of family property and possible sale of items and division of proceeds;
child custody and access (visitation rights);
child and/or spousal support;
other possible orders for the protection or safety of children or a spouse;
as between the spouses, after separation, a spouse has the obligation to take all reasonable steps to become financially independent of the other spouse.

What Is A Separation?

Fri, 25 Apr 2008 19:45:06 GMT

A separation exists when a husband or wife ceases to live together with the other of them and it is doubtful if a reconciliation between them is possible. Although it usually occurs when one party moves out of the residence in which they have been residing together, it is possible for a spouse to be considered living separate and apart from his or her spouse even though they still remain in the same residence.

What Is Required To Make Such Agreements Enforceable?

Tue, 29 May 2007 21:19:00 GMT

For any such agreement to be valid and enforceable by the court, it must be shown:

the parties knew their rights under the law;
the parties both entered into the agreement voluntarily and without coercion;
each party was sufficiently aware of the assets and income of the other party and disclosure required by law had been made or waived in reasonable circumstances;
each party had independent legal advice or had waived that right. The absence of any of the above might render any agreement wholly or partially invalid.

What Might Happen If Both Parents Were Found To Be Either Dysfunctional Or Otherwise An Unacceptable Risk To The Well-Being Of A Child, Or If A Sole Parent Died?

Mon, 04 Jun 2007 21:51:22 GMT

Willing and concerned relatives, such as a grandparents or aunt and uncle could request, would be considered and might be appointed guardians or foster parents.

What Other Kinds Of Agreements Can Be Made Between Parties To Protect Their Property And Other Rights Between Them?

Tue, 29 May 2007 21:19:00 GMT

Parties can make an agreement in writing, called a Marriage, or prenuptial agreement, before marriage, to take effect upon marriage, setting out their rights of property and rights to support, property division and other incidents of a relationship between them which may override other provisions under the law.

A cohabitation agreement can be made between partners either before or after they begin living together in a commonlaw relationship. Unless it is stated in the agreement or later amended in writing, such agreement may not be valid as a marriage agreement.

What Rights At Law May Common-Law Spouses Not Have That Married Spouses Have?

Tue, 29 May 2007 21:19:00 GMT

A commonlaw spouse may not have an equal right with the other spouse to:

live in the matrimonial home;
an equalization of property acquired during their relationship together.

He or she may have only the property of which they can show personal ownership.

On the other hand, a court will consider the contribution of one of the spouses to the matrimonial home or to the assets acquired during their relationship together, and the longer a couple has been living together, the stronger are the remedies available.

Rights to child support are similar to those for married parents.

A claim for spousal support requires that the parties have lived together continuously for five years and must be made within one year of separation.

What Rights Does A Married Persons Have With Respect To Property?

Mon, 04 Jun 2007 21:51:22 GMT

Subject to rights of spouses in real property under The Homesteads Act and provisions of The Family Maintenance Act, or provisions in any prenuptial or postnuptial agreement between spouses, The Marital Property Act provides:a married woman or a married man has a right, to apply for an accounting and equalization of assets, both personal and commercial which are not exempt from such equalization under the said Act;

either spouse may make application to court to vary equal division of family or commercial assets;

in any application to vary from equal division of assets, the court will not consider the conduct of spouses toward one another (such as desertion or adultery); the only conduct to be considered would be conduct tending to dissipate the assets to the detriment of the other spouse or to defraud the other spouse.

The Family Maintenance Act provides that spouses have a mutual obligation to contribute reasonably to each other's support.

What Steps are Necessary to Enter a Valid Premarital Agreement in Massachusetts?

Sun, 12 Jul 2009 02:14:10 GMT

Massachusetts law requires that premarital agreements, also known as antenuptial settlements, be documented in writing. A schedule that clearly describes the property that is affected by the agreement must be attached to the agreement. The schedule must be filed with the registry of deeds in order to be enforceable with third parties, such as creditors.

What Would Happen If The Parent Who Does Not Have Custody Were To Take The Child Away, Effectively Denying The Other Parent Custody?

Mon, 04 Jun 2007 21:51:22 GMT

Such an action is a serious offence under the Criminal Code. If such child were between 14 and 16 years of age, the parent who "kidnapped" such child would have committed an indictable offence punishable by up to 5 years in prison (S. 280). If the child were under 14 years, the maximum penalty for such offence is up to 10 years in prison (S. 281), but see Child Custody Enforcement, below.

When May A Separation, Cohabitation, Marriage Or Spousal Agreement Be Invalid?

Tue, 29 May 2007 21:19:00 GMT

A Court may disregard may disregard spousal support provisions in a spousal support agreement if any of the following circumstances apply and the Court is of the opinion that the separation agreement would be unfair:

the spouse who challenges the agreement did not have independent legal advice;
the agreement was obtained only by one spouse having removed a barrier to enable the other spouse to remarry in the other spouse's faith (such as the requirement of a religious divorce which requires the consent of both spouses);
a spousal support agreement entered into while the spouses were living together in a common law relationship (cohabitation agreement) may be invalidated upon the spouses becoming married to each other (unless the agreement has a term that it is made in contemplation of their future marriage to each other and the terms will survive upon their marriage);
one of the spouses is on social assistance without reasonable support from the other spouse.

Why Are Marriage Agreements Or Cohabitation Agreements Important?

Tue, 29 May 2007 21:19:00 GMT

With the rate of divorce as high as it is in these times, there are extended and former family relationships that are very complex. To discourage litigation and wasting of assets as well as other unpleasant possibilities, it is wise to obtain advice from an experienced lawyer for the writing of sound settlement agreements, marriage agreements or cohabitation agreements, carefully considered, legally binding Wills and, where applicable, trust agreements or arrangements. These are particularly important for people:

who have been divorced and are contemplating remarriage or a new commonlaw spousal relationship;
who are contemplating marriage or a spousal relationship with someone who has been divorced;
where there are children from a former relationship;
especially where a person has significant assets or insurance benefits payable on his or her death.

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