Posts Tagged ‘Divorce goals’

On occasion, a spouse will separate and relocate without telling or notifying the other spouse. Most Court systems have a provision for granting a divorce when you cannot locate your spouse. The Court will usually have a procedure that allows service by publishing and mailing (to the last known address) notice of the divorce. Although the Court may decline to enter substantive orders (such as alimony or child support) without the presence of the other party, the divorce itself will almost certainly be granted.

Every family law case should begin with a strategy. An experienced family law/divorce attorney will listen carefully and work with you to develop and implement a strategy that takes into account  the current situation, your goals and objectives, information about your spouse and the realities of the court in which your case will be heard.  Are you on the offense or defense?  Should you be the first to file or should you let your spouse make the first move? Should you push hard for a negotiated settlement? Or leave matters for the Judge to decide?

Beware of any attorney that has a one size fits all answer – such as “always be the first to file beacuse you  are the plaintiff and present your case first” or that “you should surprise and intimidate the other party”. 

Cases are different and what may be a successful strategy in one situation could be a disaster in the next.  A good family law attorney will move the case in the right direction for you!

toughtfulwriterOf course there are any number of things to consider prior to filing for divorce. Here are a few key items to reflect upon.

1) The great majority–perhaps as high as 95%–of all divorce cases are settled before going to trial. Many cases are resolved through mediation or a joint petition for divorce in which both parties agree to all terms.

2) What are your most important long-term goals in the divorce? Before filing, create and understand your goals. This will help you to make better decisions and get where you want to go in the end.

3) Focus on what will be important in five years, not what seems hugely important now but may fade in a few years. Don’t get bogged down in details, money which won’t matter in a few years, or items like the stereo, computer or flatscreen TV.

4) Do you really want to represent yourself? You might think you’ll save big on attorney fees, but you’ll need to get all the relevant information and legal forms, and you may well miss important issues an experienced attorney will be quick to point out. At least consider hiring an attorney on an hourly basis to consult with on special issues.

5) Be Organized! Get your papers in order. Write down questions for your lawyer. Perhaps ask a trusted friend, relative, or your accountant to help you organize.

6) Look (and ask) before you leap: don’t jump to conclusions or rush to a decision. It takes time to build a reasonable, fair and equitable settlement. Because you will live with the results of your divorce for the rest of your life, take your time, talk to your support network, consult with your attorney, and do not rush into things.

when to call your divorce attorneyAfter some time mulling over getting a divorce from your spouse, you have decided to take the plunge and call a family law or divorce attorney. Understandably, you may be nervous, anxious, excited, angry, frustrated, or any number of even conflicting emotions. After all, this is one of the biggest steps you can take in life. So what happens when you pick up that phone and call?

Let’s assume you’ve done some investigation, looking into different law firms, maybe checking online reviews or getting referrals from friends and family. Then when you call, you should expect the office staff or attorney to be empathetic and someone who will comfortably ease your anxiety and relieve your initial stress in making the call. Beyond that initial receptivity, what should you expect?

First of all, you should expect confidentiality, and know that the law office will never disclose to your spouse or anyone else that you made the call. The confidential nature of your call is paramount.

You should expect the person on the other end of the line to ask a few basic questions, including your name, your spouse’s name, and perhaps your spouse’s attorney, if he or she has one. Other questions include asking where you live, how you heard about the office (website, ad, referral, etc.), and then on to the big question of the type of legal counsel you are seeking, such as initiating a divorce proceeding, modifying an existing agreement, or inquiries regarding child custody or support, alimony, and other matters. If you are seeking to initiate a divorce proceeding, the office may review fundamental options with you, briefly reviewing these options so you may best proceed. This may include a discussion of the differnet options of litigation (contesting the divorce in court), mediation (to resolve all matters), and collaborative process (each party agreeing to resolution outside of court).

Following this initial conversation, the lawyer or his/her staff will schedule your first in-person consultation at a time and place convenient for you.

The oft-cited statistic has it that 50% of US marriages end in divorce, rather than the death of a spouse (though the actual figure is between 40% and 50% depending upon statistical methodology applied). Does this make divorce a cause to celebrate, to rejoice in finally being free from the constraints of a failed marriage? Or rather a cause to lament, to decry the sorry state of our society? Of course, the truth is neither and both, with a wide range of grey inbetween.

The reality is extremely subjective, varying from person to person, and all parties involved, not merely the spouses. One spouse may rejoice, the other regret. And have you ever known children of a divorce throw a party, thrilled that their parents are finally separated (absent parental abuse, anyway)? No, of course divorce is a serious matter, a venture not lightly entered into, a life-changing course rivaled by few other events in one’s life. It is sage advice to consider all options before choosing divorce as the only recourse in a failed marriage. One’s marriage may not be failed after all, simply faltering, and steps may be taken to correct the course, through counseling and mediation among other measures.

But if divorce seems your only recourse, then it is imperative that you seek the legal advice of an experienced divorce attorney who can guide you through the maze of issues that arise with divorce proceedings, many if not most of which you may well not be aware of before commencing your divorce process. Consider how much of your life, public and private, financial and material, will be analyzed and debated in a court proceeding. In fact, this is largely why 90% of all divorces are settled out of court; spouses reach agreement without courtroom drama through the aid of legal advice and mediation and so can come to terms without court proceedings.

Massachusetts was the first state to legalize same sex marriage, back in 2003, with the first same sex couples marrying in 2004. Now nine states and the District of Columbia have legalized same sex marriage and people talk of a “sea change” in marriage in the US (and, indeed, elsewhere, as similar changes have been underway in other countries, particularly in Europe). This raised the question of the constitutionality of DOMA, the Defense of Marriage Act, passed by Congress and signed into law by President Clinton (who has recently spoken out in opposition to the law) in 1997. In all, there are some 1,100 federal marriage benefits denied to all same sex married couples, regardless of whether they were legally married according to their state law. Beyond the questions of marriage benefits, however, there are also questions regarding the dissolution through divorce of any same sex marriage.

Obtaining a divorce for same sex couples is an area replete with difficulties, including issues of jurisdiction for divorce (your state may determine divorce based on residency, which will prevent the Commonwealth of Masschusetts from having jurisdiction to grant divorce even if the marriage was originally performed in Massachusetts), and a great many limitations on “standard” divorce practices due to the fact that same sex marriages are not recognized at the federal level. These limitations may include alimony, pension divisions, and limitations on bankruptcy provisions. This is an area where a very experienced divorce lawyer is often required.

You have divorced and the court has determined child support and visitation/parenting rights and obligations. Subsequently your company relocates your job outside of Massachusetts. If you keep your job and relocated out of state, your available parenting time will be reduced; however, if you quit your job to remain in Massachusetts, you will at least temporarily be unable to fulfill your child support obligations due to the reduction in your income. What options exist and what is your best decision, to move or quit your current job?

First of all, such circumstances require the consultation of an experienced divorce attorney who can weigh the considerations and legal obligations and help you make the best decision. In large part, this will be determined by the exact language of the court’s order regarding your obligations and whether a modification of the divorce order would be appropriate and available to you. Assuming this goes in your favor, you can then decide how important it is to you and to your children to remain nearby for more frequent visitation.

You will need to file a Notice of Intent to Relocate with the court prior to your move if you do decide to keep your job and relocate. You will continue to be entitled to parenting time in accordance with child custody laws under the section when distance is a factor, although distance will limit the actual amount of time you can spend with your children.

Under such circumstances, your notice to relocate will need to include a statement as to the impact of the relocation on your parenting time and any changes you propose for exercising parenting time.

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.

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:

When a spouse requires a support mechanism for themselves and/or their children, particularly where one spouse’s income is significantly higher than the others;

When a spouse wants to preserve inheritance rights (particularly older people who will not remarry);

When a spouse hopes to reconcile with a spouse who is undergoing personal difficulties (such as a substance abuse problem); and

When a spouse does not want to divide property for various reasons (such as maintaining an intact business interest).

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.

The information contained in this blog is for educational purposes only and is not legal advice. The use of this Blog does not create an attorney/client relationship between you and the Law Offices of Barry R. Lewis. If you are considering divorce or if you are involved in any legal matter, you should hire an attorney.

Massachusetts Divorce and Family Law
Attorney Barry R. Lewis — Divorce Law Specialist
Locations Throughout Eastern & Central Massachusetts :: 508-879-3262