Divorce Law Blog

Archive for the ‘Divorce’ Category

Federal IV-D regulations require uniform child support guidelines of every state, and 45 C.F.R. § 302.56 further requires that each state review those guidelines every four years. The Massachusetts Trial Court’s revised Massachusetts Child Support Guidelines, effective August 1, 2013, were recently announced and are available online at the Massachusetts Department of Revenue’s website, as well as the Child Support Guidelines Worksheet. They are also available on my website: Guidelines and Worksheet.

According to the Massachusetts Trial Court’s press release dated June 20, 2013, Chief Justice of the Trial Court Robert A. Mulligan stated that the revised Child Support Guidelines were based on the comprehensive review by the Child Support Guidelines Task Force he appointed in 2012. Probate and Family Court Chief Justice Paula M. Carey chaired the Task Force that conducted the review. Trial Court judges use the Child Support Guidelines “in setting temporary, permanent or final orders for current child support; in deciding whether to approve agreements for child support, and in deciding cases that are before the court to modify existing orders.”

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:
While the 2012 Child Support Guidelines Task Force recommended a number of both minor and new or modified provisions, the most significant changes include the following items (list quoted from the Trail Court press release):

• 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.

Questions concerning these changes or any provisions of the Massachusetts Child Support Guidelines should be discussed with an experience divorce attorney.

After a divorce, there are often stresses in a child’s life which an adult may overlook. One of the chief stresses can be the transition from your home to your ex-spouse’s home, whatever the time interval (every few days, weekends, several weeks). This is a constant disruption to a child’s life, and a persistent reminder of the family breakup. So how to best assist your children during these moves?

We can split these transitions into two broad areas: When your child is dropped off, and when your child is picked up. You and your ex should agree upon these basic guidelines to help your child adjust to the changes.

As we see played out in TV and movie dramas over and over, parents may have a difficult time in letting go at the appointed hour. But remember this is about the child, not the parents. So ease this time by adhering to the schedule, departing and delivering your child on time as agreed. Remind your child a day or two before the move so they have time to prepare and be ready for the change. Help them pack, including a favorite toy or game, outfit, or other items that are familiar and comforting. Do not wait until the last minute and rush packing, but be ready well in advance. If at all possibile, drop off your child, rather than having your spouse pick them up, so that you avoid the risk of disrupting some special moment or connection.

When your child comes back from your spouse, again, it’s better that your spouse drop the child off rather than you go to pick the child up. This way your child gets to complete their time with their other parent without interruption. Ask your child what they want to do: spend some intimate time with you doing some favorite activity like reading, cooking or playing; run out to play with friends they’ve missed; or settle into being home with the TV and pets. Give them time and space if they need it, but stay nearby and attentive. Remember that children like routine and patterns, which give them a sense of safety and wellbeing, so establish a “return routine” such as game playing, visiting the playground, or serving a favorite dinner which your child can help prepare.

Watch for signs of stress and anxiety. Some children will adjust to these changes better than others (with much depending on how the parents act and react), so if your child shows any distress or anxious behavior, consider with your ex the benefits of counseling for your child.

A separation agreement is an agreement between two married people to live apart for an unspecified period of time, perhaps forever. Generally, a separation agreement covers alimony; child support and custody arrangements if there are children; payment of bills and management of separate bank accounts; and may also determine division of property if the separation appears permanent. If the couple reconciles, the separation agreement is voidable (can be cancelled) by the parties. However, most separation agreements are interim agreements to serve between the time of separation and the eventual divorce of the parties.

This raises the question of what becomes of the separation agreement upon a judgment of divorce. Separation agreements are said to either “merge” or “survive” divorce, meaning that either the agreement is merged into (becomes part of) the divorce judgment, or, while its terms are incorporated into the divorce judgment, the agreement remains a separate and independent legal contract.

When a separation agreement is “merged” into a judgment of divorce, its terms are modifiable by the court (which retains the power to revise or modify its previous judgment). Thereafter, the “merged” separation agreement has no separate legal standing.

However, when a separation agreement “survives” a decree of divorce, it stands as a contract between the parties and can be enforced in civil proceeding in Superior Court or Probate Court, and any violation of the agreement is enforcible under the contempt power of the Court.

In many cases, it is not as simple as “merge” vs. “survive” as some parts may be treated separately. In almost all circumstances, child related provisions merge and/or change. Property division usually survives. Alimony and, increasingly, health insurance provisions may be handled in a merge.

We all know that divorce is one of the hardest experiences in life, especially for young children who cannot understand why mommy and daddy are suddenly separated and their family life torn asunder. There are altogether too few resources to help children adjust to these drastic changes, although more are appearing each year. Sesame Street now offers a Divorce Toolkit for Parents and Children which may provide some valuable assistance for you and your young family,entitled Little Children, Big Challenges: Divorce.

The Toolkit includes components for Caregivers and Families, a Storybook, Songs, Downloads, and Videos. You might want to review these components yourself or with your spouse before presenting them to the kids. Simple activities such as a divorce coloring book can help your children adjust in this trying time.

As the song has it, “Money changes everything.” Without a doubt, one of the most frequent causes of divorce is financial discord between the partners. One or both spouses’ debt may become unmanageable, whether through indulgence or carelessness, or through unfortunate circumstances beyond one’s control. As the mountain of debt soars higher, personal and marital stress may also increase, leading to partners deciding to part ways.

As you no doubt have seen, whether in personal experience or in the movies, much of divorce proceedings may focus on property division, but debt division can be equally contentious, especially where two marital partners are equally responsible for the debt, even if that debt was incurred by only one of the spouses. So what happens in divorce? Generally, debt is divided in the same manner as assets; that is, the court aims for equitable division of debt.

Thus, debt that is acquired during the marriage (and possibly leading up to the marriage) will be equally divided….maybe. Many factors come into play, and you should most definitely discuss your unique circumstances with a qualified divorce attorney. For example, a short-term marriage may not hew to this rule of thumb. Other exceptions include cases where one spouse garners debt through spending money on an extramarital affair, where the other spouse should not be obligated to repay that debt, or where one spouse has a gambling habit and has gambled his or her way deep into debt (however, if the other spouse had knowledge of the gambling habit, and benefited therefrom when the first spouse was winning, a judge may find that the debt should be divided equally between the partners).

These are but a few examples. As a very complex and vital area in a potential divorce proceeding, the only good advice is to seek the counsel of a qualified divorce lawyer to examine your circumstances in depth.

High Tech has added an arsenal of technical gear to spy on a spouse suspected of adultery, from GPS tracking of cars and cell phones to video recording and computer spyware. These advances in technology bring up the important issue of the legality and advisability of such spying.

While it may be tempting to use such techniques, or even something as apparently innocuous as logging onto a spouse’s computer to review their Internet history, there are serious legal ramifications since such activity is, generally, illegal in itself. According to Federal law, 18 U.S.C. § 1030, it is a crime to access someone’s computer without authorization, and that includes spouses and children over 18 years of age (parents do have the right to access their underaged children’s computers). Since cell phones are effectively small computers, the law can be extended to include accessing the history of someone’s phone calls, although that is not expressly defined. While this has not been interpreted by Massachusetts court in a divorce setting, the Federal law takes precedence, and someone who spies on a spouse in this manner is violating the law.

Another new technology, GPS tracking, can be used to place a tracker on a spouse’s care, but this may be considered stalking, and in Massachusetts following another person three or more times can be considered stalking. Other states have implemented laws regarding stalking via GPS tracking, and Massachusetts may follow suit.

Massachusetts law defines a right of privacy, defined in G.L. c.214 § 1B. Although the right is privacy is enforced through civil, nto criminal, proceedings, it nonetheless should give one pause before spying on a spouse. Indeed, judges do not want to reward illegal activity of any kind, and such spying may backfire on the spy rather than the one spied upon, denying the admission of any evidence found by illegal surveillance.

Previously we looked at Facebook and Divorce, but there are many other means of connecting via high tech and the Internet today which should be considered as well. Sexting, tweeting, YouTube, Tumblr, and many other channels exist which an aggrieved spouse can exploit to hurt his or her ex or soon-to-be ex. For example, a spouse can post a defamatory video on YouTube, perhaps sharing secretly filmed clips of their partner or tirades where they launch into a litany of grievances, imagined or real. Even if these videos are flagged and pulled down by YouTube, the harm has already been done.

Twitter is an instantaneous means of sharing brief, potentially harmful comments about one’s spouse with whoever follows either the poster or a hashtag such as #divorce or #marriage or #myevilspouse (yes, that’s for real). Again, the harm is shared instantly with the world at large, and therefore can reach the spouse’s friends, family, or employment.

Sexting is another potentially hurtful venue. Sexting is defined as “the act of sending sexually explicit messages or photographs between mobile phones.” This is rampant amongst the younger generation, as 30% or more of people between 18 and 25 have exchanged naked photos. Once sexted, these photos can easily be uploaded to photo sharing sites such as Tumblr or online forums, and once this happens, it is impossible to remove the photos from the Internet as they may have been shared too many times on too many venues. Such photos can be used to inflict harm on a spouse, whether by being found by an employer doing an online search for that person, by children of the spouse who become distressed upon seeing the photos, or by any number of other people in the spouse’s life.

If you have sexted naked photos with your partner, or otherwise know of such sharing through other electronic means, you should discuss this with an experienced divorce attorney, who can assist you by filing an ex-parte motion to restrain the online distribution, posting, transferring by any means, or reproducing such videos or photos.

Consider some stress reducing guidelines, especially when children are involved:

• Help your kids manage their feelings: Encourage them to openly discuss their feelings — positive or negative — about what’s happening. Talk to your children, let them know that they are not responsible for the divorce. How much detail you go into depends in part on how old and how mature the children are, but regardless of age, they need to know that the divorce is not their fault, and that they will not be losing either parent. Discuss the ways in which custody and visitation will work.
• Keep conflict and argument aways from the kids; disrupt their lives as little as possible. Maintain a calm attitude and avoid conflict, as parental fighting is very stressful for children. Take divorce conversations outside the home or discuss these matters only when the children are not home.
• Don’t use your kids as go-betweens. They should not feel like pawns nor be manipulated by either parent. Do not use children to send messages to your spouse.
• Seek support from friends, church, or organizations like Parents Without Partners, or a therapist with experience with children of divorce, someone that the children can talk to and who can help them address any guilt they feel, however unfounded, about the divorce.

Generally, the finalization of a divorce will revoke a will or at least nullify any provisions in your will in favor of an ex-spouse. Depending on the law of your particular jurisdiction, it is unlikely that the mere filing of a divorce will abrogate the rights of your spouse. Therefore, if you have concerns about the estate planning ramifications of your divorce proceedings, you should discuss them with an experienced divorce attorney.

If you have a will, it may be a good idea for you to change the beneficiary clause, such that any proceeds will go not through your soon-to-be-ex, but instead go directly to your children (if you have any) or to the executor of your estate. Likewise update the beneficiaries for life insurance, IRA, or other financial instruments.

If you do not have a will, discuss with your attorney the benefits of preparing your will prior to the divorce. Your attorney may assist you in drafting the will, or it can be as basic as one you obtain online. Your will should in part designate who should care for your children should you and your spouse pass away at the same time. The will should be notarized, with witnesses as required. (Note that a notary public does not testify to the content of the will, but only to the fact that you have signed it.)

Preparing your will prior to your divorce is especially beneficial if you have minor children, which leads to the question of talking with your lawyer and with a good friend or relative about assuming guardianship of your children should you pass away before they reach the age of majority.

Also discuss with your attorney the benefits of having a living trust in addition to a will. Your divorce attorney, being a specialist in divorce and family law and not in estate planning, may refer you to a colleague who does. Generally speaking, a living trust avoids probate for those assets listed in the trust, but it does not avoid death taxes.

Everyone knows that divorce is extremely stressful, even in the most amicable of circumstances. In fact, the landmark study by Holmes and Rahe in 1967, which resulted in the now famous original list of 43 life-events called the Social Readjustment Rating Scale (SRRS), lists divorce as the number two most stressful life event after death of a spouse, and marital separation as number three; the top five are listed below:

Life-Event …. Stress Rating
1. Death of spouse …. 100
2. Divorce …. 73
3. Marital separation …. 65
4. Jail term …. 63
5. Death of close family member …. 63

Perhaps this is a bit misleading, in that not getting a divorce when spouses no longer belong together can, over the long haul, be cumulatively more stressful: that is, the divorce itself is stressful for a short time (the divorce proceeding itself and a period of adjustment afterwards), but not getting that divorce when you believe you should can stretch that stress over years or even decades.

So, you’ve decided that divorce is right for your situation. The next step is the most important: choosing a drivorce lawyer to represent you. What do you look for in a divorce attorney? The answers (or qualifications) are many and varied, but here are a few key items to bear in mind.

You need to locate an attorney who is experienced in Family Law, with significant trial experience. You want a lawyer who can speak with you in plain English, not mumbo-jumbo legalese. And you want an attorney you feel comfortable with and can trust, since you will be revealing very personal and private information about yourself, your marriage, your family and your life.

Point-by-Point: Questions to Ask about a Prospective Lawyer:

• Does he or she make you feel comfortable?
• Does he or she have extensive courtroom experience in Family Law?
• Is the lawyer a specialist or a generalist?
• Is there a potential conflict of interest because this lawyer has worked with both you and your spouse in the past (even on apparently unrelated matters)?
• Has he or she discussed confidentiality with you?
• Does he or she talk about other clients in front of you?

These are a few basic considerations to bear in mind.

Often people look at divorce as a bitter, spiteful, angry battle between two uncompromising sides, but this is the extreme case. While two people may have come to realize that they no longer belong together—for whatever reason—the divorce process itself may range from amicably collaborative to viciously combative. Where your divorce falls on this spectrum depends on the answers to several questions.

How easily will you and your spouse settle on key issues like dividing assets, child custody if children are involved, and future payments?

Are you and your spouse separating on good terms or are one or both of you driven by anger, resentment, or bitterness?

Will you and your spouse be able to compromise in divorce negotiations or will one or both of you fight tooth-and-nail for what you think is rightfully yours?

Do you have full information as to your spouse’s financial situation and are you sure that your spouse is not hiding any income, assets or debts?

Do you believe that your spouse also desires to finalize a divorce in an expeditious manner or will the collaborative process be utilized as a delay tactic and pressure you to settle?

Who has selected the collaborative divorce attorney and are they likely to side with one party or the other?

Are you a good negotiator and can you avoid making impulsive, emotional decisions?

Do you understand enough about divorce to be able to compare likely outcomes of the collaborative process with the likely outcome of a contested judicial process?

The difference between a collaborative divorce and a litigated divorce is substantial. The parties in a collaborative divorce, with legal counsel on both sides, make decisions outside of the courtroom, only going to see a judge to get the details signed when the negotiations are concluded. In contrast, in a litigated divorce the courtroom is center of activity, with witnesses, challenges, and evidence presented before the judge. This also inevitably raises the cost of the divorce, both emotionally and financially. In financial terms alone, the difference between a collaborative divorce and a litigated, combative divorce can be thousands or even tens of thousands of dollars.

An experienced divorce attorney can advise as you as to whether a collaborative divorce is a good option for your particular situation. There are many times when a collaborative divorce is not a good option and a litigated divorce is your best option. In such a case, you want a lawyer with substantial court experience, who can be appropriately aggressive when needed, who knows the judges, and who can best look to your interests.