by Damian Turco | Jan 31, 2019 | Alimony, Child Support, Custody
Choosing a medical treatment is a tough decision for most people, but it becomes more difficult if the treatment is for a loved one. For any parent, there is nothing more terrifying and painful than the feeling that you cannot help your child. This is compounded if your child is ill and there is nothing that you can do to make your child better. Imagine, however, that there is something that you can do, but your ex is preventing you from taking steps that will help your child.
Imagine this scenario:
You and your ex have two children. One of your children has been diagnosed with a serious medical condition that requires expensive and experimental medical treatments. Your child’s physician tells you that without the treatments, your child’s condition is life-threatening. The physician also tells you that the treatments have a 33% chance of helping your child. Unfortunately, your ex and their new partner believe in “the power of prayer” and believe that if your child is meant to get better, then God will make your child better with prayer. Your ex has sole legal and physical custody. What can you do to help your child to receive these medical treatments?
Types of Custody:
In Massachusetts, there are four different types of child custody arrangements. In some cases, Parents can make their own arrangements.The judge will determine what parenting plan is in the best interest of the child or children. Sole legal custody gives one parent the right and responsibility to make major decisions about the child, including decisions about education, medical care, religion, and emotional needs. Sole physical custody means that a child lives with one parent and is subject to reasonable parenting time by the other parent, unless the Massachusetts Probate and Family Court judge decides that parenting time between the child and the parent would not be in the best interest of the child. Parenting time is a form of visitation. The parent with parenting time does not have physical custody of the child.
Judges in the Commonwealth determine what is in the best interest of the child when they make decisions about children. The court evaluates the child’s well-being; how the child is doing in school and in the community; the child’s relationship with the parents and other members of the family; the parents’ history of abuse, drug use, or abandonment; whether one parent has been a primary caregiver in the past; and the child’s preference, depending on the age and maturity of the child.
What can be done?
When a substantial and material change in circumstances exists, one party may move to request that the court modify the current child custody arrangement. Because of this, the father from the example above may request that the court award him legal custody. This would allow him to make the medical treatment that he believes are in the best interest of the child. A court would likely evaluate the child’s best interests through the lens of the child, not the lens of the mother’s boyfriend’s religious beliefs. The court would likely modify the custody arrangement, allowing the father to make the sole medical decisions for the child. The court would not consider the mother’s boyfriend’s religious beliefs. This decision is between the parents, the court, and the child and is one that is only about the child’s best interests.
Suppose instead that another party—not a parent—wants to challenge custody using the facts above. For example, could a grandparent, a school, or a Guardian Ad Litem challenge the religious beliefs of the parents if the other party believes that the parents are not acting in the best interest of the child? The answer…yes and no. While another party may challenge the beliefs of the parents through a protective services agency, via parens patriae, a Massachusetts court would not take this power away from the parents if the treatment were so experimental so as to provide no chance at saving or helping the child. A Massachusetts judge would need to decide what is in the best interest of the child when making such decisions.
If you have any questions about issues involved in family law, child law, child custody law, or other issues, you should contact a competent family law attorney. Our experienced professionals may be able to work on behalf of you. Please contact our offices at your earliest convenience by phone at (866) 995-6663 or complete a contact form on our website. We will return your inquiry with prompt attention.
by Damian Turco | Dec 1, 2018 | Alimony, Equitable Distribution
Marital property is often at the center of contention in a divorce case. Among the many types of property that may be considered part of the marital estate are retirement accounts and pension plans, business assets, and inheritance assets—and these assets are often litigated in a seriously contentious manner.
A recent Massachusetts appellate case, Dilanian v. Dilanian, addressed the issues of business assets, inheritances, and pension plans as part of the marital estate. In that case, the parties were married for thirty-one years, living a comfortably upper-middle-class lifestyle. The wife stayed home, while the husband ran a successful business, which he originally started with his father, but of which he was the sole owner by the time of the divorce proceedings. The parties filed for divorce, and while they amicably resolved issues regarding some of the marital property, including the marital home, much of the trial centered around the value of the husband’s business and the husband’s share in various assets, including pension plans.
The trial judge reviewed the husband’s income from his business, noting that in order to avoid double taxation, the husband paid himself a salary and a year-end bonus each year, leaving little funds in the company’s account as retained earnings. The husband’s financial statement reported significant income increases between 2008 and 2010, but his income was drastically reduced in 2011 and 2012, after the divorce proceedings started—yet at the same time, the amount of cash left in the business accounts increased by over $294,000, contrary to the husband’s prior practice.
The judge found that the husband had artificially lowered his income, and that the husband’s real annual income was approximately $325,000, ordering alimony to be paid to the wife in the amount of $2,000 per week. In valuing the marital estate, the judge did accept the husband’s valuation of the business, only adding in the amount of a promissory note payable to the husband for a personal loan made to the company. The husband was allowed to keep the business.
At issue were also two pension plans that the husband had contributed to during the marriage, along with an inheritance from his father, which occurred very late in the course of the marriage. The judge found that the inheritance was received so late as not to be “woven into the fabric of the marriage” and belonged to the husband. However, the judge also ordered the husband to transfer 60% of both pension plans to the wife.
The husband appealed, claiming that the trial judge abused discretion in both the judge’s valuation of the business and in giving the wife 60% of the pension plan benefits. He argued that the company’s defined contribution plan belonged partially to his now-deceased father, and thus to his sister, who received part of the father’s estate after the father died.
The Appeals Court disagreed. The Court explained: “contrary to the husband’s argument, the judge’s order will not adversely affect the interests of third persons. The plan documents establish that the beneficiaries of any portion of the defined contribution plan that belonged to the husband’s father are the husband and his sister, in equal shares. The sister, as coexecutor of the estate, signed an estate tax return taking the position that $663,961 of the plan belonged to the father. Accordingly, half of that amount ($331,981) could be claimed by the sister. Once sixty per cent of the plan is transferred to the wife, the remaining amount will be well in excess of the amount the sister claimed in the estate tax return and appears able to claim.”
The Appeals Court also found no issue with the trial judge’s valuation of the business as part of the marital estate, holding that there was nothing unreasonable in considering the $150,000 note payable to the husband part of the value of the company. The Court also disagreed with the husband on his assertions that the income imputed by the judge to the husband at trial was incorrect. “[C]ontrary to the husband’s assertion, the evidence supported the finding that the husband’s reported income was increasing until he filed for divorce in 2011, and that the husband intentionally reduced his own salary while amassing corporate earnings usually directed toward his personal income,” the Court held. “Given this evidence and the husband’s furtive financial disclosures, including his failure to prepare a 2012 financial statement for [the company], the trial judge could reasonably conclude the husband artificially reduced his income to alter his financial condition in light of the impending divorce.”
It is important to hire a competent family law lawyer to handle your unique case or answer your personal questions. If you have any questions about property distribution, alimony, divorce, or family law issues, please call our offices 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.
by Damian Turco | Nov 27, 2018 | Alimony
In Massachusetts, judges of the Probate and Family Court may award alimony to one of the spouses during the divorce process. Alimony is payment by one former spouse towards the maintenance of the other spouse. Under the Massachusetts alimony law, there are four types of alimony: (1) general term; (2) rehabilitative; (3) reimbursement; and, (4) transitional. One form of alimony is called reimbursement alimony. The aim of reimbursement alimony is to pay one spouse back for the support (financial or otherwise) that spouse provided during the marriage.
Couples embarking on the divorce process in Massachusetts should hire competent legal counsel for this process. Divorcing couples must understand the various forms of alimony that a spouse in a divorce could receive from the payor spouse. The type of alimony that a Massachusetts judge awards to a person is based upon various factors and the length of the marriage.
For example, suppose that Jessica and Tim met during college. Soon after their graduation from school, they were married. Jessica worked as an entry-level technical writer, on a track to eventually be promoted to a senior-level technical writer or director of technical writing, with a dream of going to law school to become an attorney. Tim was an entry-level financial analyst. Jessica earned more than Tim. After one year of marriage, Tim and Jessica decided that Tim would attend graduate school for business. The two-year business program was intensive, but Jessica supported her husband’s dream to become a business mogul. During their discussions about whether Tim should attend business school, the couple decided that Jessica would wait to pursue her dreams of law school until her husband finished his two-year business program. Additionally, Jessica would not work while he was in graduate school, so that she could support him. After his graduation, Tim found a job that offered a significant pay increase, and Jessica continued to support Tim as a homemaker. She never went to law school, so she did not have the chance to pursue a law degree and eventually a wonderful and arduous career as an attorney. A few months later, Tim asked Jessica for a divorce. Jessica has many questions for her attorney: first, is she entitled to reimbursement alimony?
Reimbursement alimony is intended for marriages that are shorter in length of time, five years or less. The purpose of reimbursement alimony is to compensate the payee, or recipient, spouse for all that the spouse did to support his or her spouse. The payee spouse receives reimbursement alimony to compensate for time, money, and effort spent in enhancing the other spouse’s earning capacity.
Jessica would likely be the person in the marriage entitled to alimony, because Tim earned more money and because Jessica would need to be compensated for all that she did to support Tim. Because their marriage was shorter in length–less than five years–the form of alimony that a justice would likely award to Jessica would be reimbursement alimony. A Massachusetts Probate and Family Court judge may decide to award Jessica reimbursement alimony to compensate her for her time, money, and effort in enhancing Tim’s earning capacity. The spouses had decided that Tim would pursue an education to support his career. Because of this, Jessica was unable to advance in her career. This decision boosted Tim’s earning capacity and not Jessica’s as an individual. Because of this, a Massachusetts judge would award Jessica an alimony amount to reimburse her for all that she did to support Tim as a spouse, such as her staying at home to support Tim as a homemaker and also her foregoing her dreams to support his.
Suppose that Tim and Jessica had been married for longer than five years. Could Jessica receive alimony? The answer is that Jessica could receive alimony, but not reimbursement alimony, because reimbursement alimony is for marriages that lasted five years or less. A Massachusetts judge would likely award Jessica one of the other forms of alimony, such as general term alimony, to make her whole and comfortable as she was during the marriage. Reimbursement alimony is not designed to support longer marriages.
It is important to hire a competent family law lawyer to handle your unique case or answer your personal questions. If you have any questions about reimbursement or other forms of alimony, divorce, or family law issues, please call our offices 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.
by Damian Turco | Nov 3, 2018 | Alimony, Child Support, Divorce, Equitable Distribution
Divorce can inevitably become a very stressful period in a person’s life. As emotions run high and become all-consuming, many parties do not realize that financial mistakes can be made during a divorce. This article will discuss some of the financial errors your divorce attorney can help you avoid during this high-stress time.
It is likely you and your spouse share many financial commitments—credit cards, a mortgage, health insurance, and variety of monthly bills are just a few examples. Separating these commitments is incredibly difficult, and our divorce attorneys are aware of the emotional toll this reality can take on your life.
The biggest asset you will likely have trouble separating is the marital home. As a first practical point, it is imperative that if you or your spouse stay in possession of the home, you are able to afford to do so. Our attorneys are aware that there are many memories and emotional attachments that are rooted in this home. In the moment, you may just want to keep this home since it means a lot to you, but you must ensure that you can afford to upkeep the property, as well as pay the mortgage and taxes on the property independently. If you think you would be unable to meet these obligations, we advise you not to make the financial errors of relying upon your former spouse to pay for your marital home.
While you may want to avoid dealing with separating your assets from your spouses, this is essential in a divorce proceeding. Leaving financial accounts and obligations as joint ones can create a number of devastating situations—for instance, your former spouse running up debt on credit cards or refusing to separate joint bank accounts. These situations can lead to long-term financial hardships, so our divorce attorneys strongly recommend moving forward with this difficult, but necessary step.
Another oversight that can lead to financial errors in a divorce is failing to remove your former spouse from a will or trust. During a marriage, many people will name a spouse the beneficiary of a will or trust. As it is likely that you do not want any money or property going to your former spouse after the divorce settles, it is encouraged to change your will or trust as soon as possible. Doing this simultaneously along with separating assets will avoid any mishap in the future which would give your former spouse the inheritance you wanted him or her to have while your marriage was thriving.
Taxes are another financial area that you may forget about during a divorce proceeding. In the Commonwealth of Massachusetts, it is important to know the difference between spousal support and child support payments. While you may be aware that child support may only be used for your children, and alimony may be used as spousal support, you may not be aware that alimony payments are taxable, while child support payments are not.
Also, do not forget that these payments often eventually end, and it is important that you are financially self-sufficient. For instance, child support payments may stop when a child turns 18 years old, or when a child completes their college education. Additionally, based on the type of alimony you receive, payments may end if you remarry or cohabitate with a new partner, or when you become financially stable. In the moment, you may forget that these support payments have an inevitable end date, so please be sure you are not fully reliant on these support payments.
Lastly, do not rely on your ex-spouse to help you with any of these payments. Even if your ex says he or she is going to be helpful with credit card payments, car loans, or other bills, remember that your name is on them and put yourself first. If your former spouse does not hold up his or her commitment, these costly financial errors can negatively affect your future.
If you have questions or concerns about issues involving finances, family law, or other legal issues, 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.
by Damian Turco | Oct 8, 2018 | Alimony, Child Support, Equitable Distribution
As divorce attorneys, we often see litigation and settlement questions regarding individual retirement accounts (IRAs). A pension plan, IRA, or other type of account is considered marital property for purposes of distribution during a divorce.
New questions may arise, however, where unmarried persons engaged in a romantic partnership seek to designate each other as beneficiaries of an IRA. In a recent opinion, the Massachusetts Appeals Court addressed an issue concerning an IRA beneficiary who was the former romantic partner of the decedent, whose IRA account was in question.
In UBS Financial Services, Inc. v. Aliberti, three different IRA accounts were in question, in the amounts of $31,000, $18,000, and $276,000, respectively. The account holder originally designated his romantic partner (party to the suit) as beneficiary of all three accounts. In November 2013, the account holder expressed a desire to name additional beneficiaries, and he sent back completed and signed designation update forms for the two smaller accounts, but not the third one. The updated forms designated an additional primary beneficiary and two additional contingent beneficiaries, but they also indicated that each beneficiary should receive a 25% share of the account proceeds. UBS asked the account holder to clarify whether he meant to list each of the four as primary beneficiaries. The account holder did not respond and unexpectedly died the following month. The romantic partner then contacted the account administrator regarding each of the IRA accounts and requested that all funds be distributed to her as the sole beneficiary.
The administrator of the accounts happened to be the decedent’s former sister-in-law, who worked at UBS as a financial advisor. Although the beneficiary reached out to the administrator to check on the status of her claim, the administrator never provided a status update. Instead, she sent to the beneficiary several text messages with responses such as: “How big of a whore are you,” “You are the most worst piece of filth I have ever encountered,” and, “Are you so eager to grab the money. Did you even notice his death certificate is wrong? Oh no you were too busy ransacking.”
The Court agreed with the beneficiary that UBS unlawfully withheld from her the proceeds from the largest IRA account, for which the Court noted that UBS never received any documentation naming anyone other than the romantic partner as beneficiary. “ Considering the time value of money and the fact that no investment decisions were made regarding the largest IRA for over two and one-half years, the facts alleged in the pleadings support the inference that [the beneficiary] likely was damaged from the delay in distributing those funds,” the Appeals Court held. Accordingly, the Court held that the beneficiary properly pleaded her breach of contract claims.
Additionally, the Court held that the beneficiary also properly pleaded claims for breach of fiduciary duty, holding that a fiduciary relationship existed between the decedent and UBS. “As a fiduciary, UBS was obligated to administer the IRAs for the exclusive benefit of [the beneficiary] (assuming the truth of [her] allegation that she was the only proper beneficiary) while acting fairly and in her best interests,” the Court stated, holding that UBS was required to timely distribute the IRA proceeds to the beneficiary and to keep her otherwise informed of their status.
The Appeals Court then held that the beneficiary’s claims for infliction of emotional distress were not sufficient and should be dismissed. On the issue of violation of the Massachusetts consumer protection statutes, however, the Court again held for the beneficiary. “Based on the pleadings here, UBS … (1) denied Aliberti the funds to which she was entitled; (2) for multiple years; (3) without good reason; (4) until she was forced to take legal action and incur unnecessary costs and fees,” the Court noted, holding that those actions constituted a violation of Massachusetts General Laws chapter 93A.
If you have questions or concerns about issues involving family law, domestic relations, or other legal issues, 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.
by Damian Turco | Sep 30, 2018 | Alimony, Child Support, Divorce, Equitable Distribution
Increasingly in our global society, legal issues of an international scope arise in family law cases. A recent appellate case dealt with one. In Ravasizadeh v. Niakosari, the Massachusetts Appeals Court decided for the first time an issue regarding enforceability of a mahr, which is an Islamic marital contract, in the Commonwealth’s courts.
The parties were married in 2000 in New York and separated in 2012, by which time they lived in Massachusetts. Before they married, they signed a marriage contract which provided that the wife would receive 700 gold coins from the husband in the event of a divorce. Under Iranian law, the wife was to receive only those gold coins and three months of alimony from the husband. The husband owned property in Iran, which he had inherited from his father. During the marriage, the parties enjoyed an upper-middle class lifestyle and owned property together.
At trial, the judge entered orders regarding custody and child support, and also ordered that the parties’ property be sold and the proceeds be split equally. The judge included in his calculations the property of the husband in Iran. In light of the equitable division, and finding that the wife could continue enjoying the lifestyle to which the parties were accustomed, the judge declined to award any alimony.
During the pendency of the litigation, the wife also filed a case in the appropriate Iranian court to enforce the mahr. The court found in the wife’s favor. The husband appealed to the Iranian court of appeals, which also found for the wife. The husband appealed to the Supreme Court of Iran, and that action was still pending during the Massachusetts litigation.
Back in the Massachusetts court, in addition to the division of property above, the trial judge also held that the 700 gold coins were the property of the wife. He ordered the husband to pay into the court in Iran the value of the gold coins in order to satisfy the judgment. Finally, the judge also ordered that even if the Supreme Court of Iran were to reverse and find for the husband, the husband must pay an amount equal to one-half of the money to the wife in order to satisfy liability.
The husband appealed, claiming that the judge had no authority over the marital contract, especially as the marriage contract was already being litigated in the Iranian courts. The husband also argued that the judge’s calculation created a disproportionate division of marital assets in favor of the wife.
The Court affirmed the lower court’s decision in part and reversed in part, holding that the portion of the decision enforcing the marital contract should be reversed, while the judge’s order dividing the rest of the property should stand. The Court noted that the trial judge properly used all of the factors involved in dividing property equitably, that the judge had broad discretion to make property decisions, and that the judge’s rationale and findings provided a detailed explanation for the conclusions he reached.
However, the Court held that jurisdiction over the marital contract laid with the Iranian courts. It explained and enforced the doctrine of comity, which allows the Massachusetts courts to recognize and enforce valid judgments rendered by a foreign court.
“It was error, therefore, to order the husband to pay the mahr to the wife in the event that the Supreme Court of Iran finds in his favor; in the alternative, it was error to order the wife to split with the husband any judgment that she receives, if the Supreme Court of Iran affirms the earlier judgment in her favor. That is to say, if the Supreme Court of Iran does not enforce the mahr, the Probate and Family Court is without jurisdiction to do so; if the Supreme Court of Iran does enforce it, the Probate and Family Court is without jurisdiction to dispose of it differently,” the Court stated.
If you have questions or concerns about issues involving family law, alimony, 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.
