USA – MASSACHUSETTS Trends and Developments Contributed by: Patricia Annino, Rimon, P.C.
Recent Trend: Adoption of the Massachusetts Parentage Act The Massachusetts Parentage Act (effective as of 1 January 2025), updates prior law and strengthens pro - tection for parents who use surrogacy, in vitro fertilisa - tion or other forms of assisted reproduction. It estab - lishes and recognises legal parent-child relationships to include and protect more families that in the past were considered non-traditional, and it ensures that all children receive equal treatment. A parent can now establish legal parentage through one of eight methods: presumption of parentage (both marital and non-marital presumptions), court adjudi - cation by a court in a competent jurisdiction, acknowl - edgement through signing a voluntary acknowledge - ment of parentage, genetic connection (excluding egg or sperm donors), adoption, de facto parentage (defined), intended parentage through assisted repro - duction and intended parentage through a surrogacy agreement. An “intended parent” is a person, married or unmar - ried, who intends to be legally recognised as a parent of a child conceived through assisted reproduction. A “presumed parent” is an individual assumed to be the parent of a child, unless the presumption is legally challenged, a valid denial of parentage is issued, or a court judges them to be a parent. An individual is considered a presumed parent if they are married to the child’s birth parent at the time of the child’s birth, if the child is born within 300 days of the termination of the parties’ marriage, or if the individual resides in the same household as the birth parent and child and has de facto parent status. The petitioner must provide clear and convincing evidence of: living with the child as a regular member of the household for at least 40% of the child’s life or for at least three years; consistently taking on care-giving responsibilities for the child; assuming full and per - manent responsibility for the child without expecting financial compensation; presenting the child to others as their own; forming a bonded, dependent relation - ship with the child that is parental in nature; receiving consent from all legal parents for this relationship; and demonstrating that formal adjudication of parentage serves the child’s best interests. Examples include
stepparents, close relatives, long-term caregivers and non-marital partners. A successful claim of de facto parentage puts the de facto parent on equal legal foot - ing and that parent may now seek custody, visitation, parenting time, child support, a change of the child’s name and the issuance of a new birth certificate. Under the new law, a court may recognise more than two legal parents if multiple individuals have claims to parentage and if acknowledging more than two par - ents serves the child’s best interests. In that case, all parents have concomitant rights to seek legal cus - tody and parenting time, and all have the obligation to financially support the child. Recent Trend: Inclusion of Gifted and Inherited Assets (Including Those in Irrevocable Trusts) in Divorce Proceedings Unlike most other states, gifted and inherited assets (including those held in irrevocable trusts) are custom - arily reviewed in Massachusetts divorce actions and may be taken into account when dividing the marital estate. This includes not only assets that are currently vested, but assets that a divorcing party may receive in the future. Massachusetts is not a community property state. In a divorce, assets are divided “equitably” regardless of whose name is on the asset, meaning the division of assets may not necessarily be equal, but must be fair. Massachusetts General Law chapter 208-34 (MGL c 208-34) sets forth the factors to consider when divid - ing assets in a divorce: length of marriage, conduct of the parties during marriage, age, health, station, occupation, amount and sources of income, voca - tional skills and employability, estate, liability and needs, opportunity for future acquisition of capital and income, and the amount and duration of alimony, if any is awarded. The court also has the discretion to consider each party’s contribution in the acquisition, preservation or appreciation in value of their respec - tive estates and the contribution of each as a home - maker to the family unit. Over the past few years there has been a flurry of cases in the Massachusetts courts addressing the issue of whether assets held in an irrevocable trust
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