Massachusetts Child Support Guidelines and Shared Parenting: Puzzling Provisions in the 2013 Guidelines (Part Five of Ten)

The 2013 Massachusetts Child Support Guidelines introduced some interesting but puzzling provisions. As I said earlier, the 2013 Guidelines represented the next awkward step, after that first, giant leap of the 2009 Guidelines, to incorporate evolving principles of shared income and shared parenting. Now I will begin to discuss, in this and the following several parts of this series, that next awkward step. The 2013 Guidelines created a new category between sole and joint custody for parents who have their children between 33 and 50 percent of the time. For them, support is to be the “average” of the amounts that would be paid under joint custody (equal or "approximately" equal parenting time) and sole custody (the "approximately" one third/two thirds split).

It remains unclear how and when this new cross-calculation should apply, however, and where the boundaries lie among the new categories of parenting time. I have found several inter-related and overlapping problems with the new shared parenting and other provisions of the 2013 Guidelines, which together create these new, vague categories of parenting time.  To see directly for yourself what I will be discussing, read the 2013 Guidelines here, particularly the "Parenting Time" provision on pages 6-7 and the "Deviation" provisions on pages 11-12, specifically paragraph 13.

Others have already written about some of the problems these new provisions present. Justin Kelsey observed that use of the term “approximately” is vague, and that calculating the average “sounds simple, but in application this will be the most difficult new section because it is not entirely clear when to apply the new formula and because at times the results will be counterintuitive.” Justin Kelsey, "A Mediator’s Guide For Understanding the 2013 Child Support Guidelines Changes," Family Mediation Quarterly, Vol. 12, No. 3, pp. 9-19 (Summer 2013). William and Chouteau Levine complained that while the provision for upwards deviation for parenting time under 33 percent is vague, the “greater but not equal shared parenting” provisions, by contrast, appear “way specific.” William and Chouteau Levine, 2013 Child Support Guidelines Preview, Part 5 Slicing the Parenting Plan?, Levine Dispute Resolution Center: Divorce Mediation Blog (Aug. 28, 2013). 

In those early articles on the 2013 Guidelines, commentators had only begun to scratch the surface of a big problem, or several inter-related and overlapping ones actually, which I have organized for descriptive purposes into the following seven issues:

1. How do we count parenting time to arrive at percentages? Do we count nights? Days?Actual hours? If so, do we include sleeping hours and do we count them differently? Do we count school time, and if so how, and who gets credit: the parent who drops off the child, who picks up the child, who picks up the child when sick, who has primary custody? What about weekends and holidays? Do we count them the same as school time, or more because they constitute “quality time”?

2. When and how should we deviate when the noncustodial parent has less than 33 percent? A provision allows upward deviation if the noncustodial parent has less than 33 percent of parenting time. When should we deviate? At 32 percent? At 25 percent? By how much?

3. What does "approximately equally" mean? What is “approximately” half or equal time? Is it 46 percent? 48 percent? 49.5 percent?

4. What does "approximately one-third of the time" mean? What is an “approximately” one third/two thirds split? When does “approximately 33 percent” cease to be that and become “between 33 and 50 percent”? Is 34%/66% approximately one third/two thirds? How about 37%/63%? But don’t the guidelines suggest the second cross-calculation applies to any number between 33 and 50 percent?

5. Do we want dramatic changes at the 33 percent line? If we can deviate upwards at 32 percent and use the second cross-calculation at 34 percent, the changes at that line could be extreme, especially if the parent with less time also has a much smaller income.

6. What does “average” mean here? Is the “average” always the literal average of the two numbers, both when it would be of putative amounts paid by the same payor, and when it would be of putative amounts paid by different payors to each other? Should we use a negative sign when taking the average of numbers representing transfers in opposite directions, to find the true compromise? Without the negative sign, averages in cases where the parent has both less time and income skew in the wrong direction, contrary to the guidelines’ rationale. Instead of benefitting parents when they have more than 33 (but less than 50) percent of the parenting time, it would punish them. In extreme cases, support computed that way would exceed the payor’s actual available income!

7. Must the “recipient” always be the parent with more parenting time? Is the parent with more time the only one who can receive a child support payment? Can we shift the presumed payor and recipient?

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 In Part Six, I will begin to explore these problems through discussion of a recent court case.

Massachusetts Child Support Guidelines and Shared Parenting: 2009 Guidelines - Unintended Consequences? (Part Four of Ten)

The 2009 Guidelines may well have been higher but better, as they appeared to "get the policy right," as I discussed in Part Three of this series. However, appearing to get the policy right should not be enough to satisfy us. The proof is in the pudding. The Guidelines should be examined and tested, in various scenarios, to make sure that the actual outputs comport with our view of a fair allocation of parental resources. We should not be satisfied just because the policy is “right,” if despite that, the numbers we get as outputs do not seem fair. Indeed, family law litigants will never let us ignore the results. Outputs deemed unfair are what lead to criticism that in turn results in reforms at the next guidelines review cycle. The latest changes of the 2013 Guidelines certainly reflect much expressed dissatisfaction with child support outcomes, that is, primarily with the historically high awards, in most categories, of the 2009 Guidelines. 

The record-high awards of the 2009 Guidelines themselves are not likely to have been unintended consequences, as there was dissent on the guidelines task force, even a written dissent in fact, pointing to the realization that these guidelines would produce higher, and arguably too high, awards.  The higher awards probably reflected two things, the first of which I am fairly certain, and the second less so, as it is based more on speculation and intuition: 1) the new shared-income model, in adding together income from both parents first, before deeming a portion of that shared income as child support, and then allocating according to relative income, naturally puts upward pressure on the total child support amount ultimately awarded, in absolute value terms, as joint incomes increase, and 2) the awards, in most categories, may have been allowed to go higher for the benefit of those on the task force who have traditionally favored relatively high awards, as a concession for, or in exchange for, the big shared-income and shared-parenting paradigm shifts about to be made.

Those paradigm shifts surely would have been favored by the new voice on the task force, lead by Ned Holstein, from the organization then called Fathers and Families, and now re-named the National Parents Organization, whose raison d'etre has been advocacy of their view of equal rights for fathers to parent their children and specifically for shared parenting policies and gender equity as they see them. On the other hand, in the dissent, Ned Holstein broadly criticizes the guidelines for, among other things, not having a proper rationale.  I cannot help but think, however, that he would have welcomed generally not only the new shared parenting formula but also the new shared income paradigm itself.

My strong suspicion is that the more traditional forces insisted on the relatively high awards in some implicit exchange for the big paradigm shift that paved the way for the new shared parenting provisions and the shared income model.   The task force members - an unusually large, and most diverse group, in contrast to prior task forces, and in contrast to the latest, smaller task force for 2013 as well - had to be aware that they were creating guidelines that would lead to higher awards for most categories of payors.  That is apparent from the fact that a Minority Report issued - by  Ned Holstein, with partial concurrence from two other individuals on the task force, including economist Mark Sarro, Ph.D. (whose comments appeared in the last part of this series) - which strongly protested what it deemed the "generally excessive" nature of the awards about to be instituted. (To see the conflict yourself, compare that minority report with the Task Force Report (Majority Report).

After the 2009 Guidelines issued, Fathers and Families went beyond Ned Holstein's mere words of dissent, and went to federal court, and then state court as well, in an unsuccessful effort to try to block use of the child support guidelines on that same basis.  Later in this series of blogs, I will more specifically discuss the politics of child support, ever present though often cloaked in niceties and banal platitudes about the "best interests of the children," that all-important and vague legal principle that is a buzzword easily tossed about by advocates of all stripes.

In any case, the relatively high, and arguably too high, awards that resulted from the 2009 Guidelines, were consequences well anticipated and understood, if not fully intended, by the task force, well before implementation of the 2009 Guidelines. But there were other consequences that more likely were neither foreseen nor intended, as in fact they appeared to operate at odds with the new shared-income rationale.  What am I talking about? Well, these high awards of the 2009 Guidelines - relative both to the guidelines of other states and to previous Massachusetts guidelines - relate to the fact that the new formula, though designed as a shared income model, actually in practice often functioned more like a percentage of income model. The 2009 Guidelines, according to financial planner James McCusker, in practice made child support more of a “fixed cost (as a percentage of income) rather than a variable cost.” In particular, upon comparing results under the 2005 and 2009 guidelines, McCusker found:

In all the calculations performed, the “new” guidelines produced child support amounts that approximated 25% of payor gross income. Under the “old” guidelines that percentage went down to approximately 14% when payor and recipient income reached parity.

It should come as no surprise, then, that the 2013 Guidelines, while continuing, and adding to, the new shared parenting provisions, also managed to reduce the child support awards, even by as much as 10 to 15 percent, for many categories of payors (link is to Justin Kelsey's article on the 2013 Guidelines in Family Mediation Quarterly).  Nevertheless, even after these significant reductions from the highs of the 2009 Guidelines, the Massachusetts Child Support Guidelines of 2013 remain quite high relative to other states, as detailed in a most recent, comprehensive comparison of the guidelines of all states in late 2013, by child support expert and economist Jane Venohr (article previously cited in Part One).  Her research as reported in that article reveals the remarkable fact that Massachusetts’ 2013 Guidelines still yield either the very highest or second highest awards, among all 50 states and the District of Columbia, in all three of the varied case scenarios she examined.

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In Part Five, I will begin to discuss that next, awkward step: the 2013 Guidelines.

Massachusetts Child Support Guidelines and Shared Parenting: 2009 Guidelines - Higher But Better? (Part Three of Ten)

The 2009 Guidelines brought many changes as part of the move to a shared income model, all consistent with the growing recognition that the needs, income, and contributions of both parents should be considered in determining appropriate levels of support. The 2009 Guidelines provided, for the first time, a cross-calculation to be used, both in cases of joint custody, where parenting time was “approximately equal,” and split custody, where parents had primary custody of different children. These cross-calculations, which “split the difference” between the putative amounts each parent would be obligated to pay for the other’s custodial parenting, had already been used informally by many judges and practitioners, as one of the more popular methods for determining child support in these situations in the years before the 2009 Guidelines. 

Beyond this explicit treatment of joint custody and split custody situations, the 2009 Guidelines did many other things to move away from the old tendency to unduly focus primarily on the needs of the recipient/custodial parent on the one hand, and to unduly focus primarily on the ability to pay of the payor/noncustodial parent, on the other. For example, the 2009 Guidelines eliminated the “income disregard” (of the first $20,000 of custodial income), which had always only applied to the custodial parent/recipient; this had been justified as the provision of an effective exemption from consideration of what was needed for basic living expenses (“a roof over the head”) for the custodial parent, but was hard to sustain in the face of criticism that the noncustodial parent also had basic needs, including a roof over his or her head as well. 

Other provisions of the 2009 Guidelines, as very thoroughly described by Gayle Stone-Turesky and Katherine Garren in their 2009 article, such as the “circuit breaker” and the new hypothetical guideline used to account for legal obligations to support additional children though done without a court order, all reflected a new, more comprehensive, big-picture, shared-parenting kind of thinking. The new approach was to treat child support as something that springs not from the child support payor or noncustodial parent alone, but from both parents, apportioned and transferred from one party to the other, through use of a shared income formula that first calculates a deemed total shared support amount based on shared financial responsibility. 

Many of us who have been early and consistent champions of shared income and shared parenting, both as models for determining child support and as models for thinking more broadly about parenting and support issues, saw these 2009 Guidelines as a substantial improvement. We saw them as better in many ways, perhaps even for those parents, most often the fathers, who were not the recipients but instead the payors of child support, and even though the 2009 Guidelines raised the obligations for these noncustodial parents, in most if not all categories of payors, to their highest levels ever. As Mark Sarro, economist and former member of the Child Support Task Force, said at the time: “child support amounts under the new guidelines are higher almost across the board (in all but the highest-income cases).” Yet he went on to say that the 2009 Guidelines were better even though higher, because they got the policy right: 

The most notable economic improvement is that the new guidelines symmetrically account for both parents’ financial and non-financial contributions to their children. The guidelines are entirely even-handed; the same rules now apply to both payors and recipients. For example, the ad-hoc income disregard is gone. All of the income definitions and cost deductions apply equally to payors and recipients. So do the amounts in Tables A and B, in proportion to each person’s share of combined income. Conditioning support amounts on the relative contributions of both households in the same way assures that each parent pays child costs in proportion to their relative ability to pay and under the same policy constraints.

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 In Part Four, I will address some possible unintended consequences of the 2009 Guidelines.

Massachusetts Child Support Guidelines and Shared Parenting: The National Trend Toward Shared Income and Shared Parenting Models (Part Two of Ten)

Beginning with the 2009 overhaul, Massachusetts has been part of a national trend toward a shared income model as the favored child support guidelines model, and specifically away from models that focus primarily or solely on the obligor’s income. The first child support guidelines for the 50 states and the District of Columbia began about 25 years ago (ours was in 1987).

By 1990, there were already 31 states with shared income models, but also 15 states with percentage of obligor’s income shares models, known simply as percentage of income models, two jurisdictions with guidelines based primarily on percentage of income models, but with modifications and thus called hybrid models (Massachusetts and DC), and three states with Melson formula models.  For more detailed information about the guidelines models in use throughout the U.S., see economist and child support expert Jane Venohr's recent article in the Family Law Quarterly, Vol. 47, No. 3 (Fall 2013), "Child Support Guidelines and Guidelines Reviews: State Differences and Common Issues" available here to ABA members.

By the end of 2013, both of the hybrid model jurisdictions, Massachusetts and DC, had moved to shared income models, and six states with straight percentage of income models had also moved to shared income models. Consequently, the new totals, as of the end of 2013, according to Venohr, are now as follows: 39 jurisdictions with shared income models, 9 with percentage of income models, and 3 with Melson formula models (hybrid models are gone altogether).

Massachusetts has also been part of the trend toward more recognition, and accounting for, “non-traditional” (to use the old language) cases of joint custody and split custody. Massachusetts is one of four states that in 1999 had no shared parenting formulas but now do, bringing the total of jurisdictions with shared parenting formulas from 30, in 1999, to 34 today, again according to Venohr.

Massachusetts, which adopted its first shared parenting formula, as well as its similar split custody formula, in the 2009 Guidelines, is one of the two states that adopted this new shared parenting formula as part of a simultaneous move to a shared income model for child support. Massachusetts thus provides a good illustration of both of these national trends, the one toward shared income as the favored child support guidelines model, and the other toward greater recognition and explicit treatment of shared parenting situations.

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In Part Three, I will discuss that giant leap of the 2009 Guidelines.

Massachusetts Child Support Guidelines and Shared Parenting: Introduction (Part One of Ten)

Recently I have been researching the Massachusetts Child Support Guidelines and their history since the first Massachusetts support guidelines of 1987, and have been comparing them with child support guidelines in other states. That is mainly because I have a journal article or two in the works and will be presenting a workshop "Shared Parenting and Child Support: Formulas, Incentives and Consequences" at the annual conference of the Association of Family and Conciliation Courts (AFCC) in Toronto, May 28-31. The theme of this year's conference is shared parenting, and my particular workshop, at the last session on the last day of the conference, is entitled "Shared Parenting and Child Support: Formulas, Incentives and Consequences." Here's the brochure's description:

The workshop will explore the range of child support models being used across the country, including income share models, percentage of income models, and Melson Formula models, and how they affect, and are affected by, decisions about shared parenting. The workshop will explore the relationship between child support guidelines and child custody determinations, and the often attendant challenges related to the inevitable incentives to increase or decrease either of the dependent variables of child support and child parenting time in order to influence the other.

Through my recent research, I have learned a lot about the Massachusetts Child Support Guidelines and how they compare to the guidelines of other states. I already knew quite a bit about the Massachusetts guidelines, of course, as I regularly use them in my practice as a Massachusetts family law attorney. But now I have a broader perspective, after having examined the guidelines and practices of other jurisdictions in some detail. Aided by that new perspective, I am beginning with this blog a ten-part series about the Massachusetts Child Support guidelines, their history, and particularly their recent evolution in response to the national trend in favor of shared income models for child support guidelines, and the national trend in development of specific provisions and policies to recognize and foster shared parenting. 

The latest Massachusetts Child Support Guidelines, effective August 1, 2013, continue a trend toward greater emphasis on shared income and shared parenting, begun with the last quadrennial child support guidelines revision of 2009, which was, in contrast to prior guidelines, the first “extensive overhaul” of the guidelines’ principles and formulas, following the mere “tinkering” of earlier guidelines revisions, as William and Chouteau Levine have put it. The early guidelines, from 1987 through 2005, only considered what was then called the “traditional” case, where there was a custodial parent and a noncustodial parent. 

Any shared parenting or split parenting situations, as they were not specifically addressed in the guidelines, were then commonly referred to as “outside the guidelines” and thus their treatment, for purposes of child support determinations, was left in the complete discretion of the court. The primary purpose of this ten-part series of blogs is to focus on our own recent history, particularly our evolving principles of shared income and shared parenting, and ultimately to critically examine the 2013 Guidelines as they represent the latest awkward step our Commonwealth has taken, after the first, giant leap of the 2009 Guidelines, to incorporate our evolving principles of shared income and shared parenting into our child support determinations.

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In Part Two, I will discuss the evolution of our guidelines in relation to national trends.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Alimony Statute Construed: No Credit For Time Served!

Today the Massachusetts Supreme Judicial Court just decided, in Holmes v. Holmes (see and view the oral arguments here) that temporary alimony, awarded before final judgment in a divorce action, does not have to be credited toward a calculation of the maximum term of general term alimony.   This means that if temporary alimony is awarded, as it often is, during the pendency of a divorce action, there does not have to be "credit for time served" (to use my own, admittedly imperfect analogy to criminal sentencing) in determining the ultimate award of general term alimony when the divorce is finalized.

I just read the decision, as it was released online today.  I had expected, like my colleague Jonathan Eaton, for the Court to rule differently, or for at least some of the justices to offer a dissenting opinion. I also expected better and more thoughtful analysis in the opinion, and am not at all sure I agree with the conclusions made.

The relevant alimony statutes, as amended by the 2011 alimony reform law that went into effect in 2012, do not make clear the relationship between temporary alimony and general term alimony awards.  The appellant in this case is certainly not the only one who assumed he would get credit for his ¨time served¨paying temporary alimony.   Like it or not, the Court at least answered the question pretty decisively, and now if folks don´t like it -  in the alimony reform movement, for example - they can gather forces to try to amend the statutory provisions yet again.

A big reason why I am not sure I like this decision is the arguably unfair results I am imagining in cases of short-term marriages where the maximum general term alimony would be much shorter in duration than in this case, say two or three years, for example, and so tacking on temporary alimony, during litigation of a year or two or even longer, could very substantially increase the effective length of alimony commitment relative to the length of the marriage. There are also the obvious problems that flow from the incentive this decision may give to alimony recipients to prolong divorce proceedings to increase the total alimony payout period.

For an excellent and much more detailed explanation of the decision, and what it means for family law litigants, see Justin Kelsey´s blog of today.

Meanwhile, at least for now, all you guys and gals who may have to pay alimony, you should know that until the statute is changed again, there's no guaranteed "credit for time served."

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Two Excellent Family Law Blogs by Massachusetts Mediators

I have not blogged here in nearly a year, and during that time, I have discovered a number of blogs by very smart people in my field who have been blogging rather prolifically and brilliantly about Massachusetts divorce and family law.  I've been reading their blogs instead of trying to write my own.  I'll just mention, for now, my two new favorites.  Not necessarily new, they are both fairly new to me.

The first is by a very smart mediator/collaborative lawyer, Rackham Karlsson, whose blog on his law firm website is already among the best family law blogs to be found.

The second is by two of Massachusetts' top family law attorneys, long-established in the field, Bill Levine and former Massachusetts Family Court Judge Chouteau Levine, who at their Divorce Mediation Blog write posts I simply wish I had written myself.

Visit them and read up!

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Massachusetts Child Support Guidelines Revised Again

The Massachusetts Trial Court has just announced the new Massachusetts Child Support Guidelines to be in effect for the next four years, beginning August 1 of this year.  Federal IV-D regulations require each state to have uniform child support guidelines that are presumptively correct, and 45 C.F.R. § 302.56 specifically requires each state to review its guidelines at least once every four years.  The new Massachusetts guidelines effective August 1, 2013, are here (prose) and a corresponding worksheet may be found here. The current (still in effect) guidelines worksheet remains at the Massachusetts Department of Revenue's website and should be replaced with the newly revised worksheet when the new guidelines go into effect on August 1.

Following is a summary of the key revisions, as provided in the trial court's press release:

Summary of Key Changes to the Existing Guidelines
The 2012 Child Support Guidelines Task Force recommended a number of clarifications and changes.  Some are minor, while others represent new or modified provisions.  The most significant include:

• Income from means tested benefits such as SSI, TAFDC, and SNAP are excluded for both parties from the calculation of their support obligations.

• Availability of employment at the attributed income level must be considered in attribution of income cases.

• The text makes clear that all, some, or none of income from secondary jobs or overtime may be considered by the court, regardless of whether this is new income or was historically earned prior to dissolution of the relationship.

• Reference is made to the 2011 Alimony Reform Act; the text does not, however, provide a specific formula or approach for calculating alimony and child support in cases where both may be appropriate.

• Clarification is given as to how child support should be allocated between the parents where their combined income exceeds $250,000.

• A new formula is provided for calculating support where parenting time and expenditures are less than equal (50/50) but more than the assumed standard split of two thirds/one third.

• Guidance and clarification is given in the area of child support over the age of eighteen where appropriate.  While the Guidelines apply, the court may consider a child’s living arrangements and post- secondary education. Contribution to post-secondary education may be ordered after consideration of several factors set forth in the Guidelines and such contribution must be considered in setting the weekly support order, if any.

• The standard for modification is clarified to reflect the recent Supreme Judicial Court decision in Morales v. Morales, 464 Mass. 507 (2013).

• Circumstances justifying a deviation are expanded to include extraordinary health insurance expenses, child care costs that are disproportionate to income or when a parent is providing less than one-third parenting time.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Best US Supreme Court Decision of 2012

In my view, the best U.S. Supreme Court decision of 2012 would probably be Miller v. Alabama.  This decision scored a big one for human rights of juveniles. There will be no more mandatory life-without-parole sentences for juvenile offenders.  This was a 5-4 decision of the Supreme Court back in June of 2012.  The majority opinion was penned by former Harvard Law School dean Elena Kagan.  Of course, international human rights law was not the basis for the decision, but rather the US Constitution's ban on cruel and unusual punishment.  

I have previously blogged about the issue of locking up our children and throwing away the key - see here and here.

BOSTON GLOBE ARTICLE Excerpt:

A divided US Supreme Court struck down mandatory life-without-parole sentences Monday for juveniles convicted of murder, ruling the widespread practice violated the Constitution’s ban on cruel and unusual punishment. 

The ruling will nullify Massachusetts law, legal specialists said, and throw into question the sentences of 61 prisoners who over the past four decades were ordered to spend the rest of their lives in jail. Nationally, about 2,500 prisoners are serving life sentences without parole for murders they committed before turning 18. 

In a 5-4 vote, the high court ruled that juvenile offenders younger than 18 have “diminished culpability and greater prospects for reform” and that judges should be able to consider the “mitigating qualities of youth” in sentencing, even when juveniles commit heinous crimes.

“Such mandatory penalties, by their nature, preclude a sentencer from taking account of an offender’s age and the wealth of characteristics and circumstances attendant to it,” Justice Elena Kagan wrote in the majority opinion. “Under these schemes, every juvenile will receive the same sentence as every other — the 17-year-old and the 14-year-old, the shooter and the accomplice, the child from a stable household and the child from a chaotic and abusive one.”

It so far appears that Massachusetts has not moved quickly during the past half year since that SCOTUS decision to make the necessary corrections.   Let's hope our state will finally do so soon in 2013, and we'll thus complete one small but important step in furtherance of human rights rights here in our state.  


For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Best Divorce Blog Posts of 2012

Scott Morgan, principal of the Morgan Law Firm (Houston and Austin, Texas) and fellow family law blogger, has put me on his list of the Best Divorce Blog Posts of 2012.  Check out that link for some good reading. I made it to the list on account of my blogging about gay marriage issues.  Thanks for the props, Scott!

Beyond Washington, Maryland and Maine: New Battleground States for Marriage Equality

Well, it indeed became official late last week that Washington state's referendum on marriage equality was in fact a win for marriage equality. Washington will thus be included with Maine and Maryland as the first three states to approve gay marriage by a popular vote, rather than strictly through legislative or judicial action.  They all did so in this November's elections. These three new states will now join the six other states (Massachusetts, Connecticut, New Hampshire, Vermont, New York and Iowa) and the District of Columbia as jurisdictions where gay and lesbian couples may marry.  New battleground states to watch, according to Queerty: New Jersey, Rhode Island, Illinois, Oregon, and Delaware.


For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Voters in Maryland, Maine and Washington To Approve Gay Marriage

Well, it seems to have happened.  All three of the states - Maryland, Maine and Washington - where same-sex marriage ballot initiatives were voted on yesterday, appear to be creating the right of same-sex marriage.  They join six other states (Massachusetts, Connecticut, New Hampshire, Vermont, Iowa, and New York) for a new total of nine states, plus the District of Columbia, where gay and lesbian couples may now marry.

(The vote has not yet been officially announced in Washington state, but is expected to come soon.)

These new states will be the first to create marriage equality through a popular vote, rather than through judicial or legislative action.  Three states, including our own Massachusetts, as well as Connecticut and Iowa, have judicially-created gay marriage.  The other three states, Vermont, New Hampshire, and New York, have legislatively-created gay marriage.

No doubt popular support for gay marriage equality is growing.  I continue to hope that family law scholar Joanna Grossman was right when, early this year, she optimistically foresaw, as her article title itself (following link) suggested, "the beginning of the end of the anti-same sex movement."  Indeed, another hopeful sign, from yesterday, was that Minnesota's voters rejected the ballot initiative there which called for a state constitutional amendment limiting marriage to the traditional, heterosexual marriage between a man and a woman.

I fear, however, that I may also be right in my own more pessimistic response that although progress is real, it is likely to continue to be rather slow.  (Here I am reminded of one of my favorite George Orwell quotes: "Progress is not an illusion, it happens, but it is slow and invariably disappointing.") Just as there will be a few states moving in the direction of equality, I believe there will continue to be, for many years, a large majority of states where social conservatives stubbornly refuse to recognize gay marriage.  After all, we're still only up to 9 states plus D.C..  That leaves 41 states without gay marriage, many of which already have bans on gay marriages. And of course we are still living with the federal statute (the Defense of Marriage Act).

Stay tuned.   The U.S. Supreme Court will surely weigh in soon on at least some of the issues presented by the laws for and against gay marriage.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Massachusetts Pets Now Included in Custody and Abuse Protection Orders

Over this past summer, the Massachusetts legislature passed a bill, which the Governor signed into law, that provides for the inclusion of pets in custody and abuse prevention orders.  See the recently issued Massachusetts Trial Court memo here.  I blogged about pets in restraining orders five years ago (No Longer Mere Chattel: The Rising Status of Pets in Family Law) when it was still a relatively new thing, and there were only a handful of states with such laws.  Since then, the total, not including the latest addition of Massachusetts, has risen to at least 22 other states, plus D.C. and Puerto Rico.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.