Divorce Law Blog

Archive for the ‘Divorce’ Category

Everyone realizes that finances are integral to our lives today, and in a marriage, finances are often tightly intertwined with one’s spouse. Therefore, if you are considering divorce, what steps should you take regarding your finances? It should go without saying–but I’ll emphasize it anyway–you should discuss your financial situation in depth with your attorney. That said, let’s consider some of the basic steps you should consider taking.

First of all, it is paramount that you analyze both your current financial situation and how your financial situation will evolve in the future. What are your outstanding financial obligations and goals? How are they entangled with your spouse? How should you approach disentangling your finances?

Consider gathering liquid cash assets to help assist with your attorney fees, potential moving expenses, and starting your new, post-divorce life.

Does your situation fit one or more of these three conditions: 1) a long marriage, 2) your spouse earns the lion’s share of the family income (75% or more), and/or 3) you have a family-owned small business. Each of these will factor strongly in your options and considerations.

If you do not already have one (not to be sexist, but this is common for women especially), open new checking and savings accounts in your own name, and it’s also good to obtain your own credit card, issued in your name alone. It may indeed be a good idea to use a different bank than the one that your spouse and family have been using. While banking officials are not supposed to divulge any information about your banking activities, it’s better to avoid that risk by doing business with a different institution.

Consider closing all joint credit card accounts so as not to accrue any new balances on those accounts for which you may be responsible; obtaining your own credit card, as mentioned above, will help. While you should first discuss this with your divorce attorney, you may want to consider removing one-half of the money in any joint bank account and placing it in your new account or safe deposit box. Check your bank statements for any unexplained withdrawals or large purchases, and discuss these with your attorney, as they may be attempts by your spouse to hide assets.

If you own valuable jewelry or collectibles or similar items, consider placing them in a safe deposit box to prevent your spouse from accidentally “losing” or “loaning” them or even pawning them for cash. You may want to ask a trusted friend or relative to co-sign for the safe deposit box so that, if anything happens to you, they can access the contents of the box, but be sure that person can be trusted as they will have access to the safe deposit box at any time. You should document this so it is not viewed by your spouse or the court as an attempt to secret or hide marital assets.

There are many more considerations, far too many to go into here. In all cases, discuss these issues with your divorce attorney in detail.

Be prepared for your first meeting with your divorce attorney by planning ahead. A major step in this direction is to gather all of your Essential Papers in an Essential Papers File in a safe place. You will then bring this file with you to your initial meeting with your attorney, so that these items are ready for review at the start of the process.

What are Essential Papers? Documents such as copies of your tax returns for the past three years; the deed to your home and any other real estate, plus any items that may affect the cost basis of your home, including receipts for major repairs or renovations; your birth certificate; your marriage certificate; your passport; automobile title(s); insurance forms; bank account statements; outstanding debts; and stock certificates and other investment documents.

Also include a listing of names, addresses and contact info for key people or businesses such as your attorney, accountant, stockbroker, financial planner, creditors, and executor of your will and estate.

You may also want to consider recording a video of your home and its contents to document the value and appearance of the house and valuables. Keep this tape or digital recording with a list of valuables, including description, when and where acquired, original cost and current value (if a collectible), and where possible the serial number of the item (included with all electronics but not necessarily with other items), in a safe place, preferrably not in the marital home.

Armed with these items, your attorney will be better able to advise you from your very first meeting. However, if you think that divorce may be imminent, it is important that you get the advice of an experienced divorce attorney as soon as possible. Don’t delay doing this because you are gathering documents and information. Your divorce attorney will advise you on how to best proceed.

So you’ve decided to proceed with your divorce, to get out from under a situation that has prevented you from fully living your life as is best for you. But now, facing a future without a spouse, you may feel very alone and isolated. You may benefit from some kind of support system to handle your new life alone. There are several places you can turn, from your network of family and friends to more organized support groups specifically tailored to recent divorcees. How do you find such a support group? Your attorney may well know of a group in your area that would work for you. Or you may talk with friends or business associates who have been divorced to see if they can refer a group to you.

Support group notices are often posted on church bulletin boards, in newspapers, or your local library. An advantage to a support group is such groups offer an environment where you can unburden yourself of your situation, without burdening your friends and family members with complaining that they don’t want to hear and that you don’t want to weaken your relationships.

Yes, your friends and family will be part of your wider support group, as opposed to a specific group that meets regularly to share experiences. But they may not welcome what they may perceive as an excess of whining or self-indulgence. Also remember that those friends who you have in common with your ex may or may not choose to continue as your friends. Some may, which you will welcome, but others may feel divided loyalities between you and your ex and side with him or her. It is also good to keep in mind that “mutual” friends may serve as a conduit of information to your soon-to-be ex-spouse, so discretion should be exercised when sharing information with them.

Many couples find themselves in the situation where they desire to separate but do not want to divorce due to religious objections, where a spouse suffers from a substance abuse or other serious personal problem, or a spouse wants to preserve inheritance rights. Many think of legal separation as an alternative. The concept of legal separation is to establish a trial period during which spouses live apart in accord with rights established by the court to while deciding about reconciliation or divorce. However, in Massachusetts, there is no statute providing couples with this option of legal separation as such. Instead, if you wish to separate and have protections under the law, you will need to file for divorce or separate support with the court and live separately based upon the provisions listed in the court’s temporary order. An agreement for a trial separation without filing for divorce must be made outside of court.

In Massachusetts, separate support allows a form of legal separation, most often used by people with a deep religious objection to divorce who feel they can no longer live with their spouse. There are other common situations where separate support may be appropriate when a spouse does not wish to divorce:

The principal purpose of an action for separate support is to compel a spouse to furnish support for his or her abandoned spouse and minor children during the term of the marriage and the time that the cause for separation exists. The court that adjudicates an action for separate support cannot dissolve the marriage nor provide for a division of properties. Although the process in many ways looks like a divorce and incurs the same time and expense as a divorce, in the end the spouses remain married. If the decision is then reached to divorce, then you start the process again by filing a new action for divorce.

However, by providing a method for a spouse to obtain a judgment determining his or her status as an abandoned husband or wife, separate support can secure that spouse freedom from interference with his or her personal liberty by the other spouse. It also provides a method to determine who is granted custody of the children.

Many people believe that it is necessary to file an action for separate support prior to filing for divorce. This is incorrect. The courts liberally apply the term “living separate and apart.” Therefore, it is possible to pursue this action in cases of nonsupport while the parties still reside under the same roof.

Lastly, it should be noted that even though a plaintiff files an action for separate support, the defendant may counterclaim for divorce. Under these circumstances, it is extremely likely that a divorce will be granted (particularly if the counterclaim asserts the grounds of irretrievable breakdown) when the case is finally adjudicated. Thus, the separate support action would become moot.

Kevin and Donna are in the early stages of divorce proceedings. Kevin is 32 and Donna is 28, and they have three children, ages 3, 5 and 7. Kevin alleges that, over the past couple of months, Donna has introduced the children to her boyfriend, confusing the kids by calling him their new daddy. Kevin feels that this undermines his position as their father and that Donna is attempting to drive a wedge between him and the children. For his part, while Kevin has casually dated a couple of women including a co-worker, he has deliberately kept his dates separate from his family and has not introduced nor even mentioned them to the kids. What recourse does Kevin have?

Although judges tend to vary significantly on this issue, most judges will prohibit a party to a divorce from exposing the children to a third party romantic relationship while the divorce is pending. This can make it very difficult for a party to a divorce who is residing with or spending a substantial amount of time with his/her new boyfriend/girlfriend. In fact, many times the other party will use the relationship to make it more difficult for the romantically involved spouse to exercise their visitation rights. This occurs particularly often when a spouse is angry and vindictive and often exacerbates the difficulties between the parties.

For these and a variety of other reasons, if possible it is highly advisable to avoid exposing children to new romantic partners and relationships while the divorce is still “fresh”. Often these relationships do not turn out to be long term relationships and they usually create ill will and bad feelings between the parties. Even if the children are not exposed to the third party romantic relationship, it is advisable to keep these relationships low key to avoid angering the other spouse, enflaming the situation and creating greater difficulties in the process of divorce.

There are generally two types of child custody — legal custody and physical custody. Legal custody refers to whomever makes major life decisions for the child (usually health, educational and religious decisions, although is is important to note that that, without the prior permission of the other parent or court, even a parent with sole legal custody can’t remove the child from Massachusetts permanently). Physical custody refers to whomever has the child “physically” on a day-to-day basis. One issue that frequently arises is that of joint physical custody, where custody of the child is shared by both parents. This involves many aspects, such as visitation vs parenting plans and whether joint physical custody is beneficial or detrimental to the child.

Commonly, both parents will seek sole physical custody during a separation or divorce, and the court must decide what is in the best interest of the children. A compromise solution would be for the parents to settle for joint physical custody, which typically means the child will spend an equal time with each parent, perhaps several weeks or months at a time with each parent. The pro argument goes that this is beneficial for the child because the child gets to spend equal time with each parent, thereby receiving more balanced nurturing. However, the con argument is that this is ultimately detrimental and disruptive to the child’s well-being, as the child never has the opportunity to settle into a single home with either parent, but is constantly shuttled back and forth, thereby having no sense of stability in his or her young life. Thus the court must decide in favor of what is in the best interest of the child.

Generally, the court will seek to keep siblings together and assign sole custody to one “custodial” parent, with visitation rights extended to the other, “noncustodial” parent, or the modern version of “a parently plan.” These rights may include the child spending several hours, weekends or some vacation time with the noncustodial parent. If there is any concern over the child’s safety with the noncustodial parent, supervised visitation may be ordered.

Massachusetts child custody laws allow shared physical custody, or co-parenting if the co-parents can arrive at a mutual agreement outside of court to continue to raise their child together with some type of joint physical custody arrangement. This arrangement must be submitted in detail to the court for review, at which point the court may approve the co-parenting plan as submitted, or modify the plan prior to approval. The details included in the co-parenting plan cover issues such as how custodial time will be split between the co-parents and how expenses will be split. If the co-parents are not able to reach an agreement on a custody the Massachusetts child custody laws and courts will determine issues of custody, visitation, and support in accordance with the best interests of the child.

Be wary of advice such as always file first, always get a restraining order – or – you always should try to have an amicable divorce. Advice which may make perfect sense in one situation may be a disaster in another. As you are working toward that amicable divorce, your spouse might be quietly hiding assets – or – that restraining order might unnecessarily jeopardize the employment of your spouse. In short, each situation should be analyzed on its own merit. What has been your spouse’s history? Does your spouse usually follow rules? Is your spouse someone who has real violent tendencies – or – Is this a situation where your spouse is temporarily stressed? What is your spouse’s relationship with your children?

What are your goals and objectives? Given the particular circumstances of your individual case, what strategy makes sense for you? Discuss your options in detail with your divorce attorney.

As the American economy has spun through major changes and debt has mounted for many American families, the issues involved in debt and divorce are escalating and taking an ever bigger role in divorce proceedings. Divorcing clients often face short sales or foreclosure of their homes; educational loans, credit card debt, and mortgages; and sometimes even bankruptcy.

What are some of the key issues in a Massachusetts divorce case regarding joint liabilities? Generally, debts and liabilities fall under the larger umbrella of property distribution. And in Massachusetts, property division must be equitable, but not necessarily equal: that is, fair to both parties, given differences in each party’s debt load and property value.

Although it may sound overly simplistic, there are only a few main options:

1. Pay It Off
Where possible, paying off joint debt prior to finalizing the divorce may provide closure and making a fresh, clean start after the divorce, as well as protect the credit ratings of both spouses. While the economics of the situation may seem insurrmountable, possible means of paying off joint debt could include sale of proceeds from the marital home, sale of other assets such as a second home or other valuables, or with liquid savings. Doing so allows both parties to leave the marriage with less debt, making a clean start minus that financial entanglement with your ex.

2. Split Debt
For debt which cannot be paid off as above, the next best option is to split the debt equitably, with one spouse taking responsibility for some debt and the other spouse for other debt. For example, one spouse could take responsibility for VISA debt and the other for MasterCard. However, an important caveat is that, if the two spouses were originally mutually responsible for the debt, if one defaults, then while that spouse may be in contempt of court for violating the terms of the divorce, the creditors could still legally go after the other spouse for payment.

3. Ongoing Joint Responsibility
In this case, both parties remain responsible for the debt, and the debt load is shared between them after the divorce. Again, in this case each ex-spouse may still be legally responsible for debt payment if the other defaults.

4. Bankruptcy and Credit Consolidation/Counseling
An experienced divorce attorney should have some basic understanding as to whether bankruptcy or credit consolidation/counseling are possibilities in your particular situation. Bankruptcy is a major event and should not be entered into lightly. Discuss these options with your attorney to see if they apply to your case.

5. Other Creative Options
Depending upon your individual circumstance, there also may be other viable alternatives which an experienced attorney can identify.

Usually divorce clients are seeking advice regarding what they should do in a divorce. But there are ten things you should NOT do.

1. Do not sign anything just because your spouse says you should. Always have any documents reviewed by your legal counsel.

2. Prior to the divorce, do not panic, do not make any major decisions or take any actions (such as leaving the marital home) without first consulting legal counsel.

3. Do not discuss the divorce with the children; however, you shouldn’t hide the divorce from your children, either. They will be sensitive to the situation, and honesty is the best policy with them. Let them know that the divorce is not their fault in any way, and that you and your spouse have your own issues to cope with.

4. Likewise, do not use your kids as “go-betweens” or in any way put them in the middle of the conflict. Do not bad mouth your spouse to your kids.

5. Although you may feel deeply violated and wronged in the marriage, do not threaten your spouse with vindictive claims like “You’ll never see our kids again!” or “I’ll take you for everything you’re worth!” Instead, take the high road and let your attorney and the court work to resolve all issues.

6. Do not agree to capitulate and surrender everything just because you want to get out of the marriage as quickly as possible, or because you still love your spouse and you think that by giving in, he or she will not go through with the divorce.

7. No matter how well-intended or similar to your situation a friend’s experience may be, do not take your friend’s advice as legal counsel. Only a qualified attorney is in a position and has the wide experience needed to give the best legal advice.

8. Do not procrastinate: the temptation to remain in the situation you know, however unpleasant, can keep you from getting out from under a dysfunctional marriage. Remember that staying put is much easier than making a major life change, but that that change may be what is best for you in the long haul.]

9. Do not overlook the small things, however insignificant they may seem, may be important later: make duplicates of the family album, videos of the kids playing, or other small, personal items, so that neither of you feels cheated. Buy duplicate CDs or other items that are deeply sentimental for both of you.

10. Do not complain to your family and friends about your insufferable marriage or how horrid your spouse is.

Joe and Cindy have been married for 12 years. They have two kids, ages 6 and 10, and bought a 3-bedroom ranch in a western suburb of Boston seven years ago. They have since remodeled, adding a porch, a car port, and expanding and redesigning the kitchen. However, they started having marital problems two years ago, as Joe spent more and more time at work and Cindy began donating ever more time for various causes, until both began feeling abandoned by the other. So Joe moved out of the house 10 months ago, months before they decided to seek a divorce, and now he finds himself angry at having to support his new home as well as the home he left, and feeling cut off at the same time.

Often the first spouse – in this case, Joe – to move out of the marital home is at a disadvantage. The spouse that remains in the home – such as Cindy – may have leverage as to obtaining more support to pay for the mortgage and support. The situation may worsen for the spouse who moved out in a case where the spouse who remained in the home seeks to buyout the first spouse, as that party will often delay to gain more leverage in negotiating a better deal. Often the process will drag on and the spouse who has vacated will settle for less to be able to move from their “temporary situation.” Other times, a better deal can be negotiated with a spouse who is unhappy (dare I say miserable!) to be still residing with their soon-to-be ex. However, the potential for a restraining order can also be a danger for a spouse who chooses to remain in the marital home during the pendency of a divorce. Bottom line – don’t make hasty decisions; your best bet is to discuss your particular case with an experienced divorce attorney that can advise you of the pros and cons of vacating a marital home.

When Governor Deval Patrick signed Chapter 124 of the Acts of 2011 on September 25, 2011, the Commonwealth of Massachusetts effectively abolished most lifetime spousal support, thereby joining several other states where alimony payment laws have changed as payors argue they are struggling in the current economy.

The measure generally ends alimony either when the payor reaches retirement age or when the recipient has cohabitated with a romantic partner for 90 days. Further, the law also establishes a formula for alimony, based on the length of the marriage. For example, a 15-year marriage would generally yield alimony which would last no more than 10.5 years of marriage.

However, the law still allows judges to award indefinite alimony for long-term marriages (those lasting 20 or more years), and in the case of short marriages, judges can order “reimbursement alimony” in such situations as when one spouse put the other through school during the marriage.

The major impact of the Massachusetts law is to end the previously common practice of judges awarding alimony as a permanent entitlement; such practice is becoming increasingly rare practice across the U.S. Additionally, and for the first time, the law sets guidelines for determining the amount of alimony payments. Signed in September 2011, the changes took effect in March 2012, which allows people who are currently paying lifetime alimony to file for modifications starting in 2013.

This area of law is still evolving and there is very little applicable case law at this time. An experienced divorce lawyer can advise you as to how the new statute might affect your individual situation.