Issue December 2012

December 2012

Finally a treaty for the enforcement of U.S. Court judgments abroad

The litigation of international commercial disputes in U.S. courts is often disfavored for the simple reason that U.S. judgments are notoriously difficult to enforce in foreign countries.1 International arbitration is the preferred alternative to litigation because the United States, along with 145 other countries, is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, (commonly referred to as the New York Convention), a treaty that provides for the recognition and enforcement of international arbitral awards.2 Within the next year, the United States is expected to begin implementing a new treaty that will eliminate major obstacles to the recognition and enforcement of certain civil judgments in foreign courts. The implementation of the treaty will give parties to international commercial agreements more flexibility in choosing their preferred method of dispute resolution.

Attributing income in Massachusetts domestic relations cases

The practice of income attribution to a party in determining the amount of income imputed to him or her for purposes of child and/or spousal support has long been recognized in the commonwealth. Such attribution is appropriate when a support obligor is found to be capable of working but is "unemployed or underemployed" (Child Support Guidelines, § IIH and G.L. c. 208, § 53(f)) or when a party has "made vague, misleading, or untruthful entries on a financial statement" M.C. v. T.K., 463 Mass. 226, 241 (2012). In such instances the income attributed to a party is not based on actual income but on the ability to produce income.

Ask for what you want: Cell phones and the Fourth Amendment

It is fair to suggest that when the constitution was being drafted and case law was being established to determine the requirements for a search warrant, cell phones were nowhere on the radar. However, due to the current widespread use and sophistication of cell phones, it is my position that the same "particularity requirement" of a warrant for a home should apply to cell phones.

Time-barred malpractice claims relating to prenuptial agreements

A judge of the Probate and Family Court ruled in December 2004 that a premarital agreement (made in November 1998, when the parties to it were in their 70s!) was invalid. Disgruntled about that, the former husband filed in 2006 a Superior Court malpractice claim against the lawyer who represented him in the agreement's creation. The claim against the lawyer was filed within three years of the Probate and Family Court's invalidation of the agreement. G.L. c. 260, sec. 4 (three year statute of limitations applicable to legal malpractice actions sounding in either contract or tort). Was the claim timely filed?