The Intersection of Immigration and Family Law

Many natural born citizens in the United States take for granted the ease of navigating the legal system as a United States citizen. This assertion is especially true in comparison to the ease of navigating the legal system for non-naturalized citizens. Many citizens do not understand the significant role that one’s citizenship status plays in the family law context, such as the ability to marry, divorce, obtain custody of children, and obtain financial support from another person. Citizenship carries many benefits within the family law context. There are, however, ways for all people to navigate the legal system to understand family law and the intersection of it with immigration.

The law values the family unit and the protection of children, and family law in particular has the power to affect society and the family unit. Family law also has the potential to encompass other cornerstone issues of law as well, such as family law issues involved with immigration. Given the sensitive nature of this issue–as well as its timeliness–it is important to understand the intersection of family law and immigration law.

Each of the following scenarios includes family law and immigration law issues:

  1. Hovhaness was born in the United States. He met a woman named Agnes who was born in Armenia and arrived to the United States as a teenager. The two had one child together. Years after their son was born, Agnes decides that she wants to return to Armenia to be with her elderly parents. She wants to bring their child. Is she able to? Does Hovhaness have any rights to the custody of the child?
  2. Joshua and Jonathan are a same-sex couple. Only one of them is a citizen of the United States. The couple wants to know whether they can legally marry in the United States. If they marry, would they both be citizens?
  3. A former couple, Bobby and Josie, are divorcing. They are parents to two daughters. Bobby wants to move to another country to live. Is he able to do so? Does he have any child support, alimony, or other obligations?
  4. A mother and her two children are refugees from another country. The husband of the woman and father to the children died. The mother wants to know whether she has any recourse, any way to obtain monetary support from her husband’s estate, located in their native country.
  5. Ximena was born in the United States. Her mother and father immigrated to the United States illegally. With growing concern about her family, Ximena wants to know more about her rights and responsibilities. Is she a citizen? If not, it possible for her to become one? Is there a way to make her parents citizens? Imagine that Ximena also has an older brother, but he was born in Mexico. Is he a citizen?
  6. A young woman lives with a United States citizen, a man. He threatens to report her to authorities if she discloses to anyone about the abuse and violence that he perpetrates against her.
  7. Natalie was born in India. She met her husband in India as well. The couple moved to the United States and became legal citizens. Eventually the couple had two children. One day, Natalie’s husband left for India with their children. Does Natalie have any recourse? Would she be able to get her children back to the United States?
  8. A young man marries a United States citizen woman in order to obtain his permanent residence card.

Many immigrant families need legal support that involves family law and their immigrant status or former immigrant status. These issues affect people of different genders, orientations, religions, nationalities, and backgrounds.

Immigrants may need help in the preparation and filing of petitions for alien relatives, adjustment of status, naturalization, and issues involving deportation or removal. A skilled attorney may be necessary to help an immigrant or the citizen in a familial relationship with an immigrant to find the solution to a problem. Marriage visas, green cards, bonds, DACA assistance, other visas, and other statuses may be tools available to you for your specific family law and immigration issues.

If you have questions or concerns about issues about family law, custody, child support, or domestic relations, you should contact a competent family law lawyer. Our divorce, family, and domestic relations attorneys may be able to work on your behalf to handle your case. 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 you promptly.

The Lifestyle of the Parents as a Factor in Custody Issues

Consider the following hypotheticals involving parents, children, and the lifestyle of the parents:

  1. A Massachusetts judge must decide whether a parent with a history of drug addiction should have custody over the parent’s two children.
  2. One parent, named Justin, is a collector of vintage and modern guns, knives, and other weapons. The other parent owns no guns in her household.
  3. A mother named Jessica maintains an unhealthy lifestyle, often consuming highly processed foods. She feeds the food to her three children. The medical records of the children reveal that two of the three children are obese. The father of the children wants custody of the children. He argues that he has a balanced relationship with food and exercise and states that he would feed the children nutritious fruit, vegetables, and legumes.
  4. Dennis is a father of two boys and wants custody of his sons. He goes out to nightclubs often and occasionally invites female guests overnight. The mother of the two boys is Diane. She dates on occasion, but never brings a partner around her sons, nor does she return home late in the evening.
  5. Derek enjoys smoking marijuana for recreational purposes. His passion for cannabis consumes much of his time. He argues that he would never smoke in front of his daughters. The mother of the daughters is Josie. She struggles with an addiction to opiate pills, but is in recovery.
  6. Nina and Lindsay are both in their twenties and both appear to be physically in shape. Nina exercises about 4 times per week in the morning when she wakes up at 5:00am. Lindsay never exercises – she appears fit. The former partners each want custody of the parties’ son.
  7. Jack likes to hunt and James does not. Jack hunts animals for sport and has previously brought their son Anton with him to measure the weight of dead animals. Jack takes a photograph of Anton posing with a dead animal hunted by Jack. James is outraged that Anton is exposed to dead animals and that Jack allowed Anton to pose with the dead animal.

When a Massachusetts Probate & Family court judge is tasked with the difficult decision of awarding custody to a parent or parents, the judge may consider several factors. A Massachusetts justice may evaluate the unfitness of a parent. A judge may consider whether either parent has a history of abuse or violence. A judge could also determine the child’s health needs and requirements, the residence of the child’s siblings or other relatives, the child’s preference, each parent’s health, and the lifestyle of the parents, including drug and alcohol addiction.

Even if a child has been living with one parent for some time, the lifestyle of the parents may affect the judge’s decision in awarding custody. Massachusetts judges want to ensure that the needs of children are adequately met under that the care of their parents. Judges want to ensure the best interests of a child. If a court determines that it is in the best interest of the child to re-arrange the child’s legal and physical custody, a judge may do so.

In the examples above, a judge may determine that a parent with a history of drug addiction may or may not be an acceptable option for legal or physical custody, given the lifestyle involved with drug addiction and recovery. With regard to the issue of weapons in a home, a judge may determine that if the items affect the lifestyle of a parent then it may be in the best interest of the child to reside with the parent who does not own guns. A judge may determine that children should be with parents who maintain healthy lifestyles. This may extend to food, exercise, and mental fitness. A judge may determine that a nightclub and party lifestyle or a lifestyle heavily involved in the use of any substance, whether legal or otherwise, may not be in the best interest of children. Finally, a judge may determine that a parent who hunts for sport and takes photographs of children is not the type of lifestyle practice that will benefit children in the future, especially because children who witness the abuse of animals become immune to violence and could then harm people in the future. In all of these examples, the lifestyle of the parents will be a factor considered by the court when making custody decisions.

If you have questions or concerns about issues involving family law, custody, child support, and more, you should contact a competent attorney. Our divorce, family, and domestic relations attorneys may be able to work on your behalf to handle your case. Contact our offices by phone at 978-225-9030 during business hours to schedule a free consultation. We will respond to you as soon as possible.

Surrogacy Laws in Massachusetts

Having a child is a monumental moment in many families’ lives. Social media sites such as Pinterest, Instagram or Facebook provide many ideas of how to plan a baby shower or gender reveal, as well as lists of the “Top 10 Newborn Must-Haves.” Couples are inundated with all the information they could ever imagine on these topics—seemingly, the moment they conceive! However, much of this joy is quickly eliminated when a couple discovers that they will have difficulty conceiving and may not even be able to carry a child. This can bring about stress, marital issues, and many questions for doctors.

When a couple discovers that one partner is infertile, or that a woman is unable to conceive or have a healthy pregnancy, a number of options become available. Whether a couple opts for adoption, IVF, or surrogacy, parenthood is still possible for couples in these difficult situations.

The focus of this blog post will be on surrogacy, and specifically, the laws surrounding the process. Hiring a surrogate or gestational carrier is an expensive process. It is also one that can be daunting without the proper planning and legal knowledge. When hiring a surrogate, it is likely that a surrogacy contract will be in place, detailing the legal rights of the surrogate and biological parents. Our experienced family law attorneys suggest that each party specifically identify the rights of both sided prior to the birth in a written agreement. Having a child is an incredibly emotional process, so we encourage our clients to use a surrogacy agency, and to have all the proper legal documentation in place.

In Massachusetts, there are no specific laws that address surrogacy directly. While there are laws that permit artificial insemination (MGL c. 46 s. 4B), and the necessary written consent required for adoption (MGL c. 210 s. 2), there are none that specifically discuss surrogacy, the surrogacy process, or parenting after using a surrogate. However, courts within the Commonwealth of Massachusetts have addressed issues about surrogacy contracts in several cases. As mentioned above, a surrogacy contract outlines the rights of all parties, as well as the pre-birth process.

The seminal case for this issue was R.R. v. M.H. & Another, where the court held that a surrogacy agreement was not enforceable. The court determined that a surrogacy contract was valid if the surrogate mother consented to the surrogacy for at least four days after a child’s birth, and the surrogate did not receive any compensation. Additionally, this case solidified what was necessary for an enforceable surrogacy contract. The court held that the husband of a surrogate mother had to give informed consent prior to insemination. Also, it is necessary that a surrogate mother been a legal adult of 18, with at least one prior successful pregnancy. Each surrogate mother must have a physical and psychological evaluation prior to childbearing, Lastly, it must be confirmed that the “intended mother,” the mother who is deemed the biological parent, has a medical condition or health issue which would prevent them from carrying the child themselves.

Another important case regarding the Commonwealth and surrogacy is Culliton v. Beth Israel Deaconess. That case discussed birth certificates of children born by a surrogate or gestational carrier. The court held that biological parents of a child born by a surrogate or gestational carrier could be on a newborn’s birth certificate. The court further explains that in order for biological parents to appear on the certificate, both parents must be biological, and the surrogate must consent to the birth certificate. Additionally, if any party or hospital where the child was born contests this, the names cannot be on the certificate.

Culliton is very important, because it allows expectant parents to have immediate responsibility of their child, even if the mother was not the carrier throughout the nine months of pregnancy. This ruling allows biological parents to assume parental responsibility as soon as possible, and to avoid any potential legal issues with a surrogate or gestational carrier.

Lastly, even if you are not from Massachusetts, it is important to know that the rulings in these cases create jurisdiction if a child is born in Massachusetts. For example, if your surrogate gives birth in a Massachusetts hospital, Massachusetts law does control.

If you need more information about surrogacy parenting law or 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 one of our experienced family law attorneys will respond to your phone call or submission promptly.

Grandparent Visitation Rights: New Case Law

Issues of grandparents’ rights to visitation with their grandchildren always hinge on the best interests of the child standard: that is, the Massachusetts Probate and Family Courts will order grandparent visitation only where it is in the best interests of the child to do so. Grandparents may petition the Court for visitation rights, and they must prove that the standard is met in order to be awarded visitation.

What happens when a grandparent files an incomplete petition for visitation? The Massachusetts Appeals Court recently decided this issue in the case of Martinez v. Martinez-Cintron.

In that case, the minor child’s parents divorced when the child was about six months old, and the mother was awarded sole legal and physical custody. The father was awarded supervised visitation rights.

The paternal grandmother (father’s mother) filed a petition for grandparent visitation, which was accompanied by a handwritten affidavit. In that petition, the grandmother noted that although she did not have an established relationship with the child, it was in the child’s best interests for such a relationship to exist. The grandmother offered no supporting evidence for her claims that visitation should be granted.

The mother initially did not oppose the grandmother’s request, but later filed to amend her Answer and sought to dismiss the grandmother’s claims. At trial, the judge reasoned that dismissal of the grandmother’s claim was not warranted, and noted that the court would allow the grandmother “the opportunity to produce evidence that circumstances are severe enough to warrant a court’s review of the parent’s decision to deny visitation.”

The mother of the child filed an interlocutory appeal. The Appeals Court reversed, holding that a grandparent’s petition for visitation must be dismissed when the petition does not sufficiently allege why visitation is necessary to protect the child from significant harm.

The Appeals Court looked to the case of Blixt v. Blixt, a Massachusetts Supreme Judicial Court case which set forth the pleading requirements for grandparents’ petitions for visitation rights. “We consider the pleading requirements presented in Blixt to be clear: ‘any complaint filed under the statute should be detailed and verified or be accompanied by a detailed and verified affidavit setting out the factual basis relied on by the plaintiffs to justify relief[,]’” the Court noted. Because those pleading requirements were not met here, the trial court was required to dismiss the grandmother’s petition.

“While we are sympathetic to the grandmother’s efforts to establish a relationship with her grandchild, we are similarly mindful that, absent a showing to the contrary, we presume a fit parent will act in her child’s best interest,” the Court stated. “Absent some extreme circumstance, the proper consideration is whether the grandmother made adequate factual allegations to plausibly suggest, beyond mere speculation, ‘that visitation between grandparent and child is . . . necessary to protect the child from significant harm.’… The grandmother’s affidavit in no way indicated that a failure to order visitation would subject the child to any harm, much less significant harm.”

If you have any questions about visitation rights or other domestic relations issues, call our offices to schedule a free consultation. One of our experienced family law attorneys will return your call as soon as possible.

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.