Divorce Law Blog

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.

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.