Divorce Law Blog

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.

We all know how rapidly technology, especially social media, is growing in today’s society. Everyone it seems is on Facebook, and one must protect one’s identity on Facebook in the face (no pun intended) of being “tagged” in a photo one would rather disappear, have new relationships “put on parade,” or have one’s secrets put on public display in any number of ways. This extends as well to divorce, which is also going high tech today. Spouses who would never dare to tell their soon-to-be-divorced spouse about new personal relationships, travel and their new personal lives are posting such information–often in great detail, accompanied by photos and comments from innumerable “friends”–all over web and particularly on Facebook.

Don’t assume that just because you’ve blocked your spouse they won’t be able to access this information, read the comments, and see the photos. Frequently, one of the first things divorce attorneys are advising their clients to do is to examine the Facebook pages of their spouses and their “friends” in order to gather information that will be useful in divorce proceedings. And it doesn’t stop at Facebook: one must consider all social media that one’s spouse engages in, including Twitter, Tumblr, Google+, LinkedIn, and more. With so many ways to interact online today, one must be careful indeed.