Uncontested Divorce: The Process in Massachusetts

In some cases, an uncontested divorce may be the most cost-effective and efficient option.

Mike and Barbara have been married for nine years. After meeting in college, they were married when Mike was nineteen-years old and Barbara was twenty-years old. They now realize that they both married too young and probably should never have married each other—their relationship has turned into more of a friendship, and they both want an amicable and uncontested divorce. Mike and Barbara do not have children, and both work as teachers in the public school district in the community in which they live. What is their best option for a divorce in Massachusetts?

In Massachusetts, an uncontested divorce means both parties are in alignment with the major issues that often appear in a contested divorce. These typical topics where issues may be present include topics that involve property, alimony, child custody, child support, and more. If the major issues regarding these topics do not exist, both parties may begin the divorce process together. To obtain a divorce in Massachusetts, the first step is to determine that the parties live in Massachusetts. Assuming that Mike and Barbara mentioned above are able to meet the residency requirement for a Massachusetts divorce, then they will be able to divorce in the Commonwealth.

The next step in a divorce is to draft a separation agreement. A separation agreement defines the way that the couple will divide property, handle alimony, structure the child custody arrangement, and determine child support. When a divorce is uncontested, this means that both parties have no qualms or concerns about these topics in the divorce. Therefore, the parties may proceed forward by including their separation agreement into the filing for the divorce. The separation agreement must be signed and notarized both parties. Mike and Barbara can determine the way that they want to divide their property. They can define the amount of alimony that they wish to establish. If they had children, they can determine who has custody, how they will share custody, and the manner in which they wish to raise their children. Mike and Barbara will attach their agreement to the filing for their uncontested divorce.

Prior to the hearing for the divorce, Mike and Barbara can also file a joint petition to the Probate and Family Court. Typically, in Massachusetts, one party in a divorce who wishes to divorce the other must file a petition with the court to provide the other party of the divorce. The party filing the petition then waits for the spouse to respond to the petition. In an uncontested divorce, however, the parties can complete the petition together. They must complete several statements in support of their petition, such as financial statements. Once this step is complete, the parties must file the documents with the probate and family court in the Massachusetts county where either party resides. If Mike and Barbara complete the joint petition together, they can include the joint petition with the separation that they file. They can state that they had an irretrievable breakdown of marriage as the reason for their divorce. There is no fault to their divorce – they simply wanted to end it together.

Next, once the documents are completed and filed by the parties, the Massachusetts Probate and Family Court reviews the separation agreement and joint petition that are filed with the court. The judge schedules a hearing, usually rather quickly, or approximately within 30 days. During the hearing, the judge confirms that both parties agree to what is included within the filing. The judge also reviews the separation agreement to ensure that the agreement is fair to the parties. If the judge determines that the agreement is not fair to the parties or the children of the parties, the judge may decide that both parties must modify their agreement to make it fair or equitable. If the parties do not agree, then the divorce is not granted. If the parties agree to the modified provisions, then the separation agreement becomes binding. If the agreement is binding, then divorce is granted a few months after the judgment.

Even if you have an agreeable relationship with your spouse or partner, it is important that you find an attorney with the knowledge and experience to protect you, your family, and your assets. If you have any questions about divorce, family law, child support, alimony, or more, please contact our firm. You may schedule a free consultation with an experienced family law lawyer today. Call our offices at 978-225-9030 during business hours or complete a contact form online. Do not hesitate to call our offices today.

Guardianship of a Minor

Under what circumstances is there an issue with becoming a guardian of a minor under Massachusetts family law?

Consider the following scenario: Ten-year old Rebecca and her seven-year old brother Leon live with their mother, Jodi. Rebecca and Leon were always close to their father. Unfortunately, their father recently passed away from a long-term medical condition. One evening, Jodi, a nurse, was driving home from a long shift when suddenly a driver speeding in the wrong direction hit her vehicle. After the crash, Jodi was immediately transported to the hospital and has been admitted since the accident. The physicians are unsure whether she will emerge from her dire medical condition.

On the night of the accident, the friendly neighbor watching Rebecca and Leon became concerned when Jodi did not return from her shift. The neighbor brought Rebecca and Leon to school the following day. Upon learning that Jodi had been severely injured, the neighbor informed the children’s school of Jodi’s condition. Knowing that the children have no other relatives except for an aunt studying in India, the neighbor wants to know more about the children. Who will take care of them? Who will protect them? What will happen to them if Jodi does not leave the hospital or leaves but is unable to care for them?

Massachusetts wants its minors to be cared for and protected. The courts recognize that there may be instances where a parent cannot make decisions on behalf of his or her children. In these circumstances, Massachusetts courts may appoint a legal guardian to make decisions on behalf of another person, known as a ward. A ward is unable to make the necessary legal decisions that a guardian or adult is capable of making on behalf of a child or ward.

As with custody decisions, the best interests of the child are paramount. Courts want guardians who consider the best interests of the minor in mind. Guardians may be chosen by the ward. They may be a relative. Guardians may also be someone familiar with the ward. A guardian may be a wise alternative to an adoption, especially if a parent is alive but is unable to care for the minor.

Guardians of minors take care of the well-being of the minor. They may provide a residence for the child to attend school. Guardians may make other legal decisions on behalf of the minor. In the aforementioned example, the neighbor may make a good choice for a guardian, especially because the neighbor would minimize any disruption to the children’s school life. The children could continue to attend the same school and live in the same neighborhood or even within their house, provided that the guardian ensures for their protection.

Guardians are not required to pay for all of the children’s needs from the guardian’s personal funds. Rather, the guardian may receive money due to the care and support of the children. The guardian must maintain a proper accounting of funds that are used for the children. Any excess funds must be used to support the minor. The guardian must care for the minor’s property. Additionally, the guardian must ensure that minors are educated. If a minor has health needs, the guardian must provide for the health of the minor.

The role of the guardian may be terminated for several reasons. One such reason is if the minor reaches the age of majority. The court could determine that the ward still needs a guardian even after the age of majority is reached by the ward. Also, the guardianship may end if the ward marries. Further, the guardianship may end if the guardian did not properly perform his or her duties as a guardian to the ward.

In the example discussed above, the neighbor could petition to be a guardian for the children. The wishes of each child will be considered in any decision to make the neighbor a guardian. To become a guardian, the neighbor could seek an attorney who could file a petition for appointment of guardianship. During a hearing, the court will want to know about the assets of each child, if any exist. If Jodi has any capacity, she could consent to the guardianship appointment. If she does not, the decision could be made without her consent. The guardianship does not terminate Jodi’s parental rights.

Massachusetts wants its children to be cared for and protected by a competent legal guardian. If you have any questions about divorce, family law, child law, guardianships, or more, please contact our skilled and experienced attorneys. You may schedule a free consultation with a knowledgeable family law lawyer today. Call our offices at 978-225-9030 during business hours or complete a contact form online. Do not hesitate to call our offices today.

 

The New Tax Laws & Your Alimony – How Will You Be Affected?

If you are beginning the divorce process, there are many questions you may have for your divorce attorney regarding your finances. You many find yourself in a situation where you could be paying your former spouse alimony, or you could be the individual receiving alimony from your ex-spouse. In 2017, the GOP-run legislature enacted new tax laws that will greatly impact alimony payments and separation agreements. This article will explain to you some of the impacts the bill will have on your divorce and the financial implications you may face.

First, it is important to understand the fundamentals of alimony. When divorcing, a former spouse can ask for alimony, a form of financial maintenance to assist the other spouse in becoming financially stable once the marriage has ended. There are many factors that are considering in order to determine alimony payments. These include the length of the marriage, health of the parties, socioeconomic status of the ex-spouses, financial contributions to the marriage, age, education, profession, and a variety of other factors. Depending on the situation, alimony payments can last for a certain duration or an extended period of time. According to an IRS report, in 2015, over $12 billion dollars of alimony was paid in the United States. 

First–and the most important thing to know–is that alimony payments will no longer be tax deductible for any separation or divorce agreement signed after 2018. As the alimony will be treated like child support for new alimony recipients, these payments will not be reported as income. However, if alimony payments are already being made prior to the end of 2018, there will still be tax deductions for these payments.

 Also, if these payments are already in effect, you will not be affected by any of the new tax laws to be enacted in 2019. Any prior divorce agreements will remain valid, and the IRS will uphold prior alimony agreements.  However, if agreements are modified in the future, they must comply with the new tax code.

The new tax bill likely will impact both you and your ex, as alimony payments are generally given to those in a different socioeconomic status than their ex-spouse. For example, let’s assume you are the payor, and you are now receiving a tax deduction for your payments to your ex-spouse in a lower tax bracket than you are. If you were to divorce in 2019, as the payor, you may have a better chance of no longer paying as much, since there would be no tax deduction. Due to the lack of deductions, monthly payments would inevitably be more expensive. These deductions have been so important because if a former spouse is having difficulty with payments, they were given a bit of a break due to the deduction. If tax relief is given to the payor as part of the divorce agreement, this could be one option to alleviate some of the stress that these new tax laws bring.  

It is likely that many will not be able to afford as much in alimony, as these new tax laws are a deterrent to paying as much alimony as possible. Many have assumed that divorce proceedings will increase this year, as some people attempt to get ahead of the new tax laws. If both parties agree on these modifications, their old alimony agreement can be updated to conform with the new tax code. Since there will be no further tax deductions due to alimony, many payers will be rushing to divorce attorneys to deal with these agreements as soon as possible. It is inevitable that finances in a divorce could become a lot more cumbersome and messy.

If you are going through a divorce and are concerned about how the new tax laws will impact your current or future alimony payments, please contact a family law attorney to discuss your options. If you need more information about family law or this issue specifically, please feel free to schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form and we will respond to your phone call or submission promptly.

 

Special Considerations When Doctors Divorce

According to recent studies, divorce among doctors is not as common as one would expect. If you are a doctor who is considering getting a divorce in spite of the positive statistics, there will likely be special considerations that you may need to address with a family law attorney. In general, the divorce process can be a complicated process, and when one or both spouses are doctors, a divorce may be even more complex than a divorce between a non-doctor couple. The heightened complexity of the divorce may stem from various reasons, such as increased earning potential; the existence of a private practice; or the amount of financial support contributed by the non-doctor spouse.

Any doctor with a private practice might find it stressful to consider that a divorce may affect his or her practice negatively. In Massachusetts, the ways divorce can affect your practice may vary depending on your marital situation. Massachusetts judges divide marital property equitably among the spouses upon divorce. It is important to understand that equitably does not always mean equally, as judges base their decisions on fairness.

It can be a common misconception that if property was acquired before a marriage, it will not be divided upon the dissolution of the marriage. In Massachusetts, the judge will divide the property in any way he or she feels is equitable, even if the property was acquired before the marriage took place. For a doctor who started his or her own practice prior to the marriage, this could mean the practice may be considered marital property and subject to division. Usually, an appraisal will be done to determine the value of the practice. To avoid causing economic damage to the practice, the court may offset against the existing property value. For example, if the doctor’s medical practice is worth $300k, and the parties own a $300k home together, the non-doctor spouse will keep the house and the doctor will be entitled to keep the medical practice.

The situation may differ when both spouses are doctors and started their medical practice together. If this were the situation, the practice would most likely be divided equally. On the rare chance that the spouses decide they can work with one another post-divorce, division of the practice can be avoided. As continuing to work together is usually not a viable option (hence the divorce) one doctor will be required to buy out the portion considered marital property from the other spouse.

Unless you are a sole practitioner, it is also important to evaluate how your pending divorce may affect your partners and staff. A divorce may affect your shares in your practice and your money flow, which in return may affect your ability to pay your support staff. Although every situation is different, being proactive and discussing with a divorce attorney the possible repercussions your divorce may have on your practice is important.

Another complicated issue that may arise for a doctor who is divorcing is the how much alimony the non-doctor spouse is entitled too. A common scenario is where the non-doctor spouse worked to help support the other spouse through medical education. Moreover, it may be argued that the non-doctor spouse forfeited a promising career so that the other spouse could pursue his or her career as a doctor. Either argument may persuade a judge that the non-doctor spouse is entitled to more alimony or a larger portion of the marital property.

Massachusetts law considers reimbursement alimony for the non-doctor spouse in a short-term marriage (no more than 5 years). Reimbursement alimony functions as a way to pay back the non-doctor spouse for any economic contributions he or she may have made to the spouse who received the medical education. Generally, this type of alimony will be provided when the economic contributions were made to help the other spouse complete their education.

If you are a doctor who is considering getting a divorce, it is important that you contact a divorce attorney as soon as possible. Divorce can be a very difficult process and there may be added complications when doctors divorce, especially in situations where a private practice is involved. As a doctor who is potentially divorcing, it is important to be transparent with your divorce attorney because it is possible your pending divorce may affect your life in ways you were not expecting. For more questions regarding special considerations a doctor should be aware of when seeking a divorce, please contact our office at your earliest convenience to schedule a free consultation.

Health Insurance Issues in Divorce and Custody

What Massachusetts laws govern health insurance during divorce and custody cases?

Divorce

When seeking a divorce and/or dealing with custody of children, a question that often concerns individuals is the issue of health insurance coverage. This is a great question to bring up to your family law attorney, as every situation pertaining to health insurance is different. When seeking the advice of a family law attorney, it is important to bring all information regarding your health insurance with you. When dealing with a divorce and all its complications, health insurance can be low on the list of priorities, but it can become a point of contention, especially when children are involved.

Generally, during a marriage one spouse who is the holder of a health insurance policy will provide coverage to the other spouse and to the children in the family. Therefore, upon dissolution of the marriage the question remains: who will be responsible for providing the health insurance to the uninsured spouse and if necessary, to the children? To put this answer simply, in Massachusetts, the Judges of the Probate and Family Court, in conjunction with the state insurance laws, determine who is responsible for health insurance coverage.

As with temporary support, at the commencement of divorce proceedings, a judge will address the health insurance issue and enter an order preventing either party from terminating or making changes to their existing coverage. Therefore, during the preliminary stages of the divorce, the insured spouse will be obligated to continue providing insurance coverage to the other. As the divorce proceedings evolve, the judge will decide based on the insurance available to each spouse how coverage will continue. Ultimately the judge decides if the insured spouse is no longer obligated to provided insurance, if they must continue providing coverage, or whether they will be required to reimburse the other spouse for finding independent insurance.

Under Massachusetts law, a spouse who is a member of a group insurance policy, upon divorce will be obligated to provide insurance benefits to the ex-spouse under his or her plan, unless divorce judgment provides otherwise. Coverage under a group plan will continue until remarriage of either the member spouse or until a specific time stated in the divorce judgement.

In addition to determining who will be responsible for providing health insurance upon the divorce, there are other factors to be considered, such as deductible and premium payments and who will bear the burden of paying for medical expenses that insurance does not cover. At the time a divorce is finalized, all of these issues will be addressed and will be a part of the divorce agreement.

Child Custody

Health care coverage is also a concern is when dealing with child custody issues and determining which parent will be responsible for providing the child or children with health insurance. Similarly to spousal health insurance, the question regarding health insurance coverage for a child is governed by Massachusetts family law in conjunction with the state insurance laws. It must also be noted that while a judge must make these decisions in conformance with the laws, the judge will also consider several factors in determining which parent should provide the health insurance for the child. For example:

  • Which parent currently provides health insurance for the child/children?
  • Is the current coverage available at a reasonable cost?
  • Is providing health insurance going to cause a parent “undue hardship?”

Massachusetts law affords parents several avenues for providing health coverage for their child(ren). These options include but are not limited to providing coverage through their employer, choosing to get coverage through MassHealth, or purchasing health insurance independently. Since Massachusetts law considers health care coverage a component of the child custody, it is mandatory that a child’s health care coverage be incorporated into the child support order. Therefore, if neither parent can provide health care coverage for the child, the courts may allow the parents to come to a written agreement that the child will be covered in an alternative way, such as under the grandparent’s insurance.

While navigating the child custody waters, it’s important to discuss with your family law attorney your concerns with providing health care coverage for your child. Generally, absent an agreement to the contrary, a judge can only order a parent who pays child support to provide health care coverage. However, a judge must use discretion and see if the insurance available to the parent can be obtained at a reasonable cost, and whether providing it would cause the parent an “undue hardship.” The Massachusetts child support guidelines provide that if a parent can obtain health insurance from their employer, it will be available at a reasonable cost. For more information about your child’s health care coverage, you may consult the Massachusetts Child Support Guidelines, section II.h.

If the coverage is not available at a reasonable cost or it would cause the parent to experience an “undue hardship,” the judge may not order the parent to provide health care coverage for the child. An undue hardship may arise when providing a child with health care coverage would prevent a parent from making child support payments, or if a child experiences extraordinary health care expenses and the cost would greatly exceed the coverage the parent is able to provide.

Ultimately, health insurance and health care coverage will likely come up in divorce and child custody cases. If you are experiencing family turmoil and are concerned about how it will affect you or your child’s health care coverage it is important to contact a family law attorney to discuss your options. If you need more information about family law, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form and we will respond to your phone call or submission promptly.

Special Considerations When Entrepreneurs Divorce

As many studies have shown, couples in which one spouse is an entrepreneur have a high rate of divorce. Whether it’s because the business encompasses much of entrepreneurs’ time, or because the non-entrepreneur spouse feels neglected, divorce is common.

While divorce is already a complicated process, generally, entrepreneurs have a special set of considerations when divorcing. As such, it is important to consult your family law attorney regarding the special financial concerns you may assume as an entrepreneur or the spouse of an entrepreneur.

For starters, as Massachusetts looks at property division in divorce under an equitable distribution standard, marital property and separate property are equally considered. Regardless of whether a business was started before a marriage, during a marriage, or even with an ex-spouse, it is important to know what rights you have in your company, and what your company is worth.

When divorcing, family law attorneys will ask their client to bring forth all assets, so that property can be distributed equitably. For entrepreneurs, your business may be your biggest asset. If this is the case, there is a good chance your former spouse would like a portion of your business during settlement. When the divorce proceedings begin, it is important to know exactly what your business is worth. While estimating this number is helpful, disclosing the actual figure can help divorce proceedings run more smoothly.

Before having your business appraised, it is in your best interest to have a third party, who is not connected with you or the business to perform this type of unbiased work. If you are being represented by a lawyer, ask your family law attorney if they know of any accountants or business appraisers who could assist in these efforts. An appraiser will be able to effectively run through all of your invoices, books, company property, and other assets in order to arrive at the correct figure for the worth of your business.

If you are the ex-spouse of an entrepreneur, it is important that you make certain your business owner ex-spouse is not concealing assets, hiding contracts, or bringing forth a fraudulent appraisal. Is it possible that your ex could be swindling you out of hundreds, thousands, or even millions of dollars? Consult with an attorney to confirm that any appraisal and valuation of the business is valid.

The next step for entrepreneurs is to consider what comes next for their business. As this is likely a valuable divorce asset, a business owner spouse is forced with the decision on whether to sell, retain or split the assets with their soon-to-be ex-spouse. If a business was established prior to marriage, there is more uncertainty about how much money your ex will receive. However, it is very likely that if the business began during the marriage, both spouses will have rights to it. In an equitable distribution state, a court considers many factors such as length of marriage, educational background, profession, and financial responsibility among other things.

Additionally, if this entrepreneurial venture is a partnership or a closed corporation, it may be necessary to consult the partnership agreement and/or by-laws. It is possible that these contractual agreements may disclose information pertinent to what occurs if one partner gets divorced. There could be further cases where a person may want to buy their former spouse out of a business. If you find yourself in this situation, it may be possible to give your former spouse a promissory note, so that he or she is financially satisfied after being bought out of the business.

Also, if you and your ex-spouse were in business together, it is possible that a prenuptial agreement or partnership agreement could disclose what business assets are disclosed to what spouse. If this arose in a prenuptial agreement, either spouse can challenge, potentially, the validity of the agreement. A prenuptial agreement may be invalid if a spouse did not have proper time to consult with their own individual attorney when the agreement was signed, or if the agreement was signed under duress, among other possible reasons.

Overall, if you and your former spouse are amicable, working through a divorce for entrepreneurs can be as simple as coming together and negotiating this specific property division. As this would be a simpler, less expensive to get what you want out of a divorce agreement, attempt negotiation before going to court.

If you need more information about entrepreneurship and divorce or about family law generally, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form and we will respond to your phone call or submission promptly.

Special Considerations When Lawyers Divorce

Consider the following scenarios, each involving lawyers and divorce:

  1. Rebecca and Zev were married for twenty years. Rebecca is an attorney. Zev is not. They want to divorce.
  2. Nancy and John were married for three years. John is an attorney. He wants Nancy to sign a post-nuptial agreement, and then he wants a divorce from her.
  3. Marshall and Malcom lived together for nine years and married for four years. They live in the South End of Boston and were equal partners in law and life. They want to divorce each other.
  4. Josh and Lee were married for seven years and now want a divorce. Josh is a transactional attorney and Lee is a litigator.

In all of the above situations, the parties want to divorce and at least one of the parties is an attorney. When lawyers divorce, there are special considerations that must be evaluated during the divorce process.

First, the parties should hire outside counsel for the divorce and should not attempt to take on any of the legal work themselves–for several reasons. When engaged in a divorce, anyone (whether he or she is an attorney or not) must always think objectively and consider all of the ramifications of a decision. If the parties each hire separate counsel to handle their divorce, then the outside lawyers will treat the attorney(s) in the divorce in the same or similar manner as they would any client.

Additionally, there may be a concern that the attorney in the marriage, or the attorney with the most legal experience or even family law experience, may have some type of advantage over the other party. Even if this is untrue, the divorce proceeding should be kept as equitable and fair as possible for the parties involved. In one of the examples above, Rebecca is an attorney and Zev is not. In another, Josh is a transactional attorney and Lee is a litigator, which means that Lee may have an advantage and experience with being in a courtroom. Therefore, each should take care to hire outside counsel and not have handle the case on their own, as this could be viewed (or claimed) as an unfair advantage.

Second, when lawyers divorce, they should consider other aspects of the divorce, including the legal and ethical consequences, especially if they own a firm together. It’s possible that two parties who want a divorce may also be business partners. For some general business partners, this is not a huge issue, but for two lawyers in a divorce, there are several considerations to understand. In the example above with Marshall and Malcom, the two attorneys are equal law firm partners; here, it is important that they, as attorneys, consider their ethical duties as well. If Marshall or Malcolm decide to leave the firm, then it is important that each understand that they have duties to each other and their clients. For instance, they may not be able to join another firm with conflicts to the parties within their firm.

Third, an attorney should not handle his or her own case because he or she may seek an unfair, unethical, or invalid agreement between his or her spouse. For example, in one of the above examples, John is an attorney who wants his spouse Nancy to sign a post-nuptial agreement. Post-nuptial agreements are created after a marriage occurs to set the standard for the divorce. Courts in Massachusetts would want to ensure that any such agreement is not based in fraud. A court may view John to have an unfair advantage over Nancy in his legal knowledge and experience; as such, he should not attempt to create a post-nuptial agreement.

Just as a surgeon would not operate on his own body or a physician would not diagnose and treat his or her own medical condition, an attorney should not attempt to handle his or her own divorce. When lawyers divorce, outside counsel should take care to treat the attorney as any other client. The outside attorney should continue to follow all of the Massachusetts Rules of Professional Conduct and remember that he or she does not owe a duty to both parties of the marriage, but to one party, the client.

If you want to file for a divorce or if your spouse has indicated that he or she wants to file for a divorce, you should contact an attorney. Our divorce, family, and domestic relations attorneys may be able to take your case. You should not delay. Please contact our offices by phone at 978-225-9030 during business hours or complete a contact form on our website. We will respond to your phone call or submission with prompt attention.

How are Social Security benefits and pension/retirement plans treated for purposes of property division and alimony payments?

Robert and Mary, a Massachusetts couple, have been married for ten years and now want to proceed with obtaining a divorce. During the marriage, Robert worked and Mary took care of the home. They had no children. Because Robert has a pension plan, the question comes up: how does a court handle Social Security benefits and pension/retirement plans in property division and alimony?

In Massachusetts, the property in a divorce is subject to an “equitable division.” This does not mean that each party to the marriage receives an equal share of property in the marriage. Rather, each party to a marriage receives fair and equitable amounts of property, so that each party can experience a similar lifestyle to which he or she grew accustomed during the marriage.

A pension earned during the marriage is generally considered to be a joint asset of both parties, and would likely be equitably divided via a qualified domestic relations order. This is an order that is filed with the Massachusetts Family Court and if approved is given to the administrator of the pension, so that the pension maybe divided between the parties. The division of a pension may be a complex issue because pensions, also including IRA or 401(k) accounts, are not always equal in a dollar for dollar manner, as there may be penalties and taxes associated with them. A family law attorney can help evaluate and value the numerical amounts to handle this complexity on your behalf.

Retirement accounts are also considered to be marital assets in a divorce. As such, retirement accounts would be divided on an equitable basis. This issue becomes complex, however, because the parties must look to the length of the marriage. For example, in the case above, Robert and Mary were married for ten years. Suppose, therefore, that Robert continues to work for another 30 years. His payment to Mary would be one half of the quarter of the account, because his payment is one half of his working life during the marriage.

Alimony is different from property division in a divorce. Alimony is court-ordered support from one spouse to another and is separate from the equitable division of property. In Massachusetts, there are four types of alimony: (1) General Term alimony (provides regular support for a length of time based on the length of the marriage); (2) Rehabilitative alimony (provides regular support until the ex-spouse is able to be self-sustaining); (3) Reimbursement alimony (provides regular or one-time support for a shorter marriage to make up for costs that the ex-spouse paid in supporting the other spouse); and (4) Transitional alimony (provides regular or one-time support).

If a judge decides to award alimony under the common General Term alimony standard, then he or she will review the following factors when deciding whether or not to award alimony or for how much the alimony award should be assigned: the length of the marriage; age of the parties; health of the parties; income, employment and employability of both parties, including employability through reasonable diligence and additional training, if necessary; economic and non-economic contribution of both parties to the marriage; marital lifestyle; ability of each party to maintain the marital lifestyle; lost economic opportunity as a result of the marriage, and other factors the court considers relevant and material.

Robert and Mary were married for ten years, and the facts indicate that Robert was the sole working person in their family unit. As such, alimony payments would likely be awarded to Mary from Robert. Depending on the type of alimony that the Court determines that Mary would receive, Mary would likely be able to receive alimony payments until Robert’s retirement age. The Massachusetts family court may review several factors in awarding alimony payments to Mary, such as her health and disability (if she has issues such as these), marital lifestyle (she was able to stay at home), and her contribution to the family unit (lost opportunity to work, for example).

If a Massachusetts Justice decides to use this equitable factors approach under General Term Alimony, then the Justice would likely order that Mary receive alimony for seven years, unless Mary remarries or if Robert passes away or if Robert reaches full retirement age. If Mary cohabitates with someone else and has maintained a common household with another person, then Mary’s alimony payments could be ordered to be ceased. It is important that a payor spouse, like Robert, not arbitrarily discontinue payments without the approval from a Massachusetts Justice.

If you are seeking a competent family, pension, retirement, or alimony law lawyer or domestic relations attorney, please contact our offices by phone at 978-225-9030 during business hours or complete a contact form on our website. We will respond to your phone call or submission promptly, and you may schedule a free consultation with us.

Best Practices for Working with a Guardian ad Litem

In some cases, a Guardian ad Litem’s services are a key component.

Imagine the following scenario: a ten-year old child named Jacob is diagnosed with a “curable” form of cancer. If Jacob is brought to a hospital for regular chemotherapy treatments, then Jacob has a chance to beat the disease and live a healthy and stable life. Jacob’s parents, however, are devoutly religious people with the deeply held belief that God and prayer are the only acceptable ways for their child to be cured of cancer. The parents believe that if Jacob is meant to be cured, then God will provide for the cure. As such, Jacob’s parents are refusing any medical treatment for Jacob.

This scenario might trigger a court case, one in which the state of Massachusetts has a special interest in advocating on behalf of Jacob to ensure that he has a chance to beat his disease, even against the wishes of his religious parents.

If a Justice of the Massachusetts Probate and Family Court appoints a Guardian ad Litem to the case involving Jacob, the Guardian must be impartial. He or she investigates or evaluates the family and has a duty to investigate the family’s situation. This investigation may include interviews with Jacob and his parents and home visits. After reviewing the family circumstances, the Guardian ad Litem creates a detailed report to file with the court. The person does not take sides and is supposed to be an impartial third party.

When working with a Guardian ad Litem, it is important to remember certain best practices. First, it is necessary to know that the Guardian ad Litem is not your attorney, and anything that you share with him or her may be reported to the Justice in your case. The person does not need to keep any confidential information that you may believe you are sharing in confidence.

Second, it is also important to remember that you must provide the Guardian ad Litem with accurate information and to share with the Guardian ad Litem any information about other people who may have information in support of your case.

Third, it is important to remember that depending on the circumstances of your case, the investigation or evaluation process with a Guardian ad Litem may take several months. Because the process may be long, it is wise to keep written documentation about what you want to share with the person; what you have shared with the person; when and for how long you spoke with the Guardian ad Litem; and any other information that you think would benefit your case. When you speak with the Guardian ad Litem, you should create a summary or bulleted list of important points that you wish to share, so that you stay focused with your thoughts.

Another item to consider is that there may be a cost associated with the Guardian ad Litem process, which you may be required to pay. Also remember: because the Guardian ad Litem is an impartial person, he or she may seem distant or highly questioning of you. This does not mean that he or she does not believe you or what you’re saying, but rather, it means that he or she is performing his or her due diligence in remaining impartial for the report to be given to the Family Court Justice.

Encourage those with whom you know the Guardian ad Litem will be speak to remain truthful. Provide factual information requested by the Guardian ad Litem, but be sure to speak with your attorney and not the Guardian ad Litem about facts that may or may not hurt your case. If the Guardian ad Litem requests that you sign consent forms to obtain confidential information from professionals, be sure to speak with your attorney before you sign any documentation. After the report is created, you have a right to read the final report. You may not copy the report without permission from the Massachusetts Family Court Judge.

In the above case with Jacob, the Guardian ad Litem will present the facts of the family situation, but the Guardian ad Litem is not a legal advocate of Jacob. Although Massachusetts values religious freedom, this freedom is not limitless when the care of a child with a curable form of cancer is concerned. There are other circumstances when a Guardian ad Litem may be involved such as a divorce, separation, or other matters that affect children or the family unit.

If you are seeking a competent family law or child law lawyer or domestic relations attorney, please contact our offices by phone at 978-225-9030 during business hours or complete a contact form on our website. We will respond to your phone call or submission promptly, and you may schedule a free consultation with us.

Is Marital Fraud Grounds for a Civil Suit? New Massachusetts Case

In a recent case, the Massachusetts Appeals Court decided whether marital fraud–that is, fraudulently inducing another person to marry–constitutes a valid civil cause of action. In the case Shea v. Cameron, the parties were married in 2007, after a two-year consensual romantic relationship. The wife owned her home individually. In 2010, she transferred title to the home, to be owned jointly with the husband, and the husband’s name was added to the mortgage as well.

In 2011, the wife discovered that the husband was having an affair. She filed for divorce, then withdrew her complaint and filed for an annulment instead. During a deposition in the proceedings, the husband admitted that he was unable to love the wife very early in the marriage and that he did not believe her to be his “one true love.” In 2013, the parties entered into a joint stipulation of annulment, which ended the marriage.

Unbeknownst to the husband, the day before the annulment, the wife filed a civil complaint related to the parties’ stipulated fraud. She sued him for false claims of love, emotionally harmful conduct, and improper use of the couple’s finances.

In Superior Court, the judge ruled for the husband. While the judge acknowledged that the husband made some misrepresentations about his love and commitment to the wife, he also concluded that the court could not intrude into the private and personal relationship of the parties, nor could the court provide relief. The judge granted summary judgment for the husband. Following that decision, the judge then reported the case to the Appeals Court.

On appeal, the Court first addressed whether the stipulation of fraud had any impact on the civil claims. While stipulations of fact are binding on the parties and respected by the courts, the Appeals Court explained, stipulations of law (such as the one regarding fraud in this case) are not binding on the courts.

The Court then discussed the substance of each of the eight claims brought by the plaintiff. Those claims included fraud, misrepresentation, battery, infliction of emotional distress, undue influence, and unjust enrichment. The Court first explained that Massachusetts law precludes claims of breach of a marriage contract, and that any civil tort action based on such a breach is unavailable in Massachusetts. As a result, the Court held that the wife’s claims based on fraud were precluded.

Next, the Court reviewed the wife’s claims for infliction of emotional distress, holding that an adulterous affair (even if it were meant to cause emotional harm) is not “extreme and outrageous” as required in order to prove a claim for emotional distress. Likewise, the husband’s failure to disclose past sexual or romantic history did not rise to the level of that tort claim.

Finally, the Court considered the wife’s claims for damages for the exchange of money and her home between the parties over the course of their relationship. The wife claimed that she would not have given ownership of her home to the husband had it not been for the husband’s coercive or fraudulent conduct. The Court held, however, that the record showed insufficient evidence in this regard, upholding the trial court’s grant of summary judgment.

“As evidenced here, not all human actions in the context of the dissolution of a marriage have an avenue for legal recourse, no matter how much anger, sorrow, or anxiety they cause,” the Court noted. “This court respects the difficult work done by Probate and Family Court in disentangling marital relationships. The process of divorce provides an avenue for alimony and the equitable distribution of property. By voluntarily withdrawing her complaint for divorce and entering into a stipulation and judgment of annulment, [the wife] chose to forgo that process and her claims could not survive in Superior Court.”