Stopping Your Divorce When You and Your Spouse Have Changed Your Minds

Let’s set the scene: you and your spouse have already filed for divorce. As you are still friendly, you plan on getting a no-fault, and are awaiting your court date. As time is passing by, you are thinking about what is best for the both of you, your family, and your future. You both decide that you no longer want to go through with the divorce. What do you do?

At this stage in court proceedings, when there has been no involvement of a judge, dismissing a divorce is a very easy process. In this case, we are going to assume that you have filed a joint petition for divorce. If so, you and your spouse can go to the court and execute a Stipulation of Dismissal. When a settlement is reached in a pending case, a voluntary stipulation of dismissal is generally filed by the parties to resolve the action.

On the other hand, this may be a situation when there has been court involvement and perhaps a divorce already has been approved by a court in the Commonwealth. As in other states, there is a mandatory waiting period after a Judgement of Divorce in Massachusetts before it becomes final. This period is known as a nisi period. During this 90-day nisi period, the parties in divorce are given the option to change their mind before the divorce becomes final. During the nisi period, the marriage has not been dissolved. In an interesting Massachusetts case, Vaughan v. Vaughan, the Court held that where one party died during the nisi period, the other party was considered the surviving spouse of the deceased party.

If you decide to change your mind regarding a divorce which was already granted by the court, the parties can file a motion to dismiss the divorce judgment. A judge may only grant a motion to dismiss a divorce complaint during the nisi period if there is “sufficient cause.” For example, in one case, Mailer v. Mailer, the court held that issues with financial aspects of a divorce would not rise to sufficient cause to grant the motion of dismiss. However, an exception to this is if both parties in a divorce file a memo to agree to dismiss the divorce—there, no hearing is required, and the motion to dismiss will be granted.

Assuming you are the party who is seeking to dismiss a divorce action on behalf of yourself and the other party, it is necessary to file a statement of objections to the judgment of divorce during the nisi period.

If you need more information about dismissing a 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.

 

Condonation

Condonation, along with connivance, collusion and recrimination, are affirmative defenses to a fault claim for divorce. These defenses were commonplace in England’s ecclesiastical courts[1] but infrequently asserted in Massachusetts divorce cases and not statutorily grounded. Many jurisdictions have abolished the condonation defense.[2]

Condonation involves one spouse absolving or accepting the other spouse’s misconduct which would constitute grounds for divorce. In essence, it means that a party continues or resumes marital cohabitation despite the other spouse’s misconduct. The defense is most often raised in divorce actions alleging adultery. The argument says that dissolution of the marriage should be denied because the complaining spouse forgave or didn’t object to the other spouse’s wrongful behavior and their union continued. If, however, the unfaithful spouse were to cheat again after the previous infidelity was forgiven, an adultery claim could be brought. Condonation may also be offered as a defense in other fault-based divorce actions, such as those alleging fraud.

Some jurisdictions consider a couple’s resumption of marital relations after the defendant spouse’s wrongful behavior as conclusive proof of condonation. The Massachusetts Appeals Court, following the lead of the Maine Supreme Court, has held that “[s]exual intercourse is not…per se condonation.”[3]

In the Zildjian case, the defendant wife appealed her alimony award and judgment of divorce for cruel and abusive treatment granted her husband, contending that the couple continued to live together after the first two instances of alleged cruel and abusive treatment. The court rejected her argument, finding that: “Condonation is a state of mind to be determined upon all the evidence, including rational inference.”[4] Condonation, the court noted, requires a factual determination of an intent to forgive, adding that a trial judge’s denial of the defense should only be overturned on appeal if clearly wrong.

In a more recent case, Sullivan v. Sullivan,[5] the wife was granted a divorce on the grounds of adultery. The husband vacated the marital home one month after his spouse discovered his affair, though the couple tried to reconcile over the course of several months, taking family trips together, going on several dates, and engaging in sexual relations when the wife visited the husband’s condominium. Nevertheless, the Appeals Court upheld the probate judge’s rejection of the husband’s defense, ruling that the wife never condoned the husband’s affair, that the husband never returned to the marital home and that the wife continued to demean the husband about his infidelity during the couple’s attempted reconciliation.

If you have any questions about divorce or family law issues, call 978-225-9030 during regular business hours or complete a contact form and we will respond to your phone call or submission promptly.

 

 

[1] Robbins v. Robbins, 140 Mass. 528, 529-530, 5 N.E. 837, 839 (1886).

[2] Chalmers v. Chalmers, 65 N.J. 186, 190-191, 320 A.2d. 478 (1974).

[3] Zildjian v. Zildjian, 8 Mass. App. Ct. 1, 391 N.E.2d 697, 700 (1979).

[4] Zildjian, 391 N.E.2d at 700, citing Hayden v. Hayden, 326 Mass., 587, 591, 96 N.E.2d 136, 139 (1950).

[5] 10-P-1531 (Mass. App. Ct. 2011)

What Provisions Should be Included in a Separation Agreement?

For just about every couple seeking a divorce, the separation agreement is an exhausting and time-consuming document. With the right attorney, the process can be smoother, but it is imperative that a person seeking a divorce contact an attorney experienced in these matters. Your attorney should work toward drafting a separation agreement on your behalf. But what provisions ought to be included?

Separation agreements should address several mandatory statutory factors related to alimony, benefits, funds, estates, property, and insurance.[1]

These mandatory factors may also include other provisions. For example, separation agreements may include custody provisions, such as the legal and physical custody of any children. They may include living arrangements, parenting plans, emergency decision planning, religious training, and more. Agreements may also include provisions related to child support, such as the amount, costs for extracurricular activities, and taxation information. Separation agreements may also include provisions related to a child’s education expenses and involvement in college applications or financial aid. The agreement may also include provisions related to the health, dental, and vision insurance for children.

Separation agreements may also include alimony provisions, such as the amounts, tax effect, and possible future modification of alimony. Provisions related to the former spouse’s health, dental, vision, and life insurance may be included. Also, provisions related to the marital home may be included. This encompasses joint ownership provisions, homeowner’s insurance provisions, maintenance provisions, and more. If the parties possess other shared income, the parties should include provisions related to that additional property as well. This may include pension and retirement, securities, bank accounts, and family business provisions. Separation agreements may also include provisions related to taxes, debt, liabilities, and the procedure for any future disputes.

After the separation agreement is written, the agreement is presented to a Massachusetts judge.[2] After a hearing about the merits of the separation agreement, the judge may decide to accept the separation agreement.[3] The judge may decide that a separation agreement is sufficient if the separation agreement contains provisions for custody, support and maintenance, for alimony and the disposition of marital property, and for what is in the best interests of any children, if applicable.[4] This is a broad standard, and each drafted separation agreement must be specific to the parties because every family has unique challenges and responsibilities.

Separation agreements must also be “fair and reasonable.”[5] Some of the many factors that establish whether a separation agreement is reasonable include the following: the consideration of financial provisions as a whole; the context of how the negotiation of the agreement occurred; the background and knowledge of the parties; and the agreement in the context of the statutory factors for property division and spousal support.[6]

If you are seeking answers to your questions about separation agreements or general family issues, 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.

 

 

[1] Mass. Gen. Laws ch. 208 § 34

[2] Mass Gen. Laws ch. 208 § 1A

[3] Id,

[4] Id.

[5] Dominick v. Dominick, 18 Mass.App.Ct. 85 (1984)

[6] Id.

The Respective Estates of the Parties: a Factor in Alimony

Suppose Grace and Will own a home and have pension plans. Now that they are divorcing, they want to know how a court would impose alimony payments. How do the respective estates of the parties factor into the court’s decision regarding alimony?

Alimony is court-ordered support from one spouse to another.[1] In 2011, Massachusetts adopted the Alimony Reform Act. The Act, which took effect in March, 2012, governs the type, the amount, the duration, and the termination of alimony payments. In Massachusetts, there are four types of alimony[2]: (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).

In Massachusetts, assets are divided on an equitable basis.[3] A judge’s decision as to what is equitable will not be reversed unless “plainly wrong and excessive.”[4] A court may assign all or any part of the estate of the other, including, but not limited to, retirement benefits, military retirement benefits, pension, profit-sharing, annuity, deferred compensation, and insurance.[5] The definition of estate is broadly defined.[6] As such, Massachusetts courts allow the division of premarital property and post-marital property on a case-by-case basis.[7]

A judge 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.[8]

For Grace and Will, a court will evaluate their income levels and the type of alimony that should be awarded (and if any should be awarded). If a judge determines that an alimony award is necessary, the court will factor the estates of the parties in the award on an equitable basis. Courts will also look to determine whether either of the parties wasted marital assets and will make an award based on equitable, not solely “equal” factors.

If you need more information about the Massachusetts alimony law 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.

 

 

[1] Mass. Gen. Laws ch. 208 § 48

[2] Id.

[3] Adams v. Adams, 459 Mass. 361, 371 (2011) (citing to Bowring v. Reid, 399 Mass. 265, 267 (1987))

[4] Adams, 459 Mass. at 371 (citing to Redding v. Redding, 398 Mass. 102, 108 (1986))

[5] M.G.L. c. 208 § 34

[6] Rice v. Rice, 372 Mass. 398, 400 (1977) (holding that an estate is all property to which the party holds title, however acquired.)

[7] Moriarty v. Stone, 41 Mass. App. Ct. 151, 156 (1996) ; Brower v. Brower, 61 Mass. App. Ct. 216, 218 (2004)

[8] Alimony Award Process, https://www.mass.gov/service-details/how-the-court-decides-if-alimony-will-be-awarded-alimony; Mass. Gen. Laws ch. 208 § 34

Can You Appeal a Temporary Order During Divorce?

If you have issues in your case that require an order sooner than later, filing a motion for temporary orders and having it heard by the judge may be the solution. While trial in a divorce case doesn’t ordinarily occur until the case has been going on for 12 to 15 months, you can get into court for temporary orders in the first few months. It typically makes the most sense to ask for temporary orders in cases with custody and support issues, when real estate mush be sold, or when there’s a need for an order for one party to vacate the marital home. But, what to do if the judge rules incorrectly at the temporary order hearing?

Joe and Jane are getting divorced. During the proceedings, the judge issued a couple of temporary orders with which the parties disagreed. Joe took exception to the probate judge’s temporary abuse prevention order against him. Likewise, Sam objected to the probate judge’s allowance of Cindy’s motion that he vacate the marital home during their divorce proceedings.

Are temporary appealable before the parties are granted a final judgment of divorce?

Both the Appeals Court and Supreme Judicial Court may review orders by the Probate and Family Court. The appellate process is costly, complex and time-consuming, so alternatives such as asking the probate judge to reconsider an order or seeking a modification of an order should be initial considerations.

A spouse aggrieved by a probate court order may appeal the order to the Appeals Court or SJC within 30 days of its entry.[1] Interim or temporary decisions by a probate court judge are called “interlocutory orders” and do not constitute a final resolution of the parties’ divorce proceedings. Under Massachusetts law, a party aggrieved by an interlocutory order of a probate court judge may seek relief from the order within 30 days of its entry before a single justice of the appellate court.[2] Further appeal of a single justice’s ruling may be sought before the full Appeals Court or the Supreme Judicial Court.

Because interlocutory orders can be modified during the pendency of a divorce case, appellate courts are hesitant to hear reviews of such orders. Motions for temporary support, orders to vacate the marital home and discovery-related rulings, consequently, are usually viewed as unappealable until a final judgment of divorce issues. Limiting appeals of temporary orders is justified, the Supreme Judicial Court has held, because it prevents a party from ongoing disruption of proceedings through appellate review of issues that prove unimportant in the long run.[3] Interlocutory judgments not appealed from are open to revision on appeals from final judgments only if the Appeals Court of Supreme Judicial Court deem the final judgments were erroneously affected by the interim decrees.[4]

A party requesting an appellate court to review an interlocutory order must demonstrate that the consequences of applying the order would be harmful and could not be remedied when the proceedings are over or through a regular appeal.[5] This is referred to as the present execution doctrine.

Appellate courts hearing interlocutory order appeals do so without the benefit of the record of lower court proceedings, so the appellant petitioning for review must provide:

  • a request for review giving the date and nature of the order;
  • a statement of issues;
  • a statement of relief requested; and
  • a copy of the order at issue.

Additionally, the petition to a single justice requires a maximum 15-page memorandum of law that includes portions of the records pinpointing the issues the petitioner wants the justice to review.

Want to speak with a divorce lawyer about your case? Schedule a free consultation with our office and you’ll learn how the law applies to your facts and circumstances. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.

[1] M.G.L. c.215, §9.

[2] M.G.L. c. 231, §118.

[3] Borman v. Borman, 378 Mass. 775, 779 (1979).

[4] M.G.L. c.215, §14.

[5] Maddocks v. Ricker, 403 Mass. 592, 598 (1988); Metzler v. Lanoue, 62 Mas. App. Ct. 655 (2004).

Valuing Partnerships and Professional Practices in a Divorce

How is a share in a partnership valued in a divorce? How are professional practices valued in a divorce?

People facing a divorce are often concerned about their financial futures. One such financial concern regards how shares in a partnership are valued in a divorce. Parties may also wonder how professional practices are valued in a divorce.

Say, for example, that Taylor and Alex have shares in a financial management business. Also, Taylor owns a medical practice. Now that they are divorcing, Taylor and Alex want to know how their assets will be divided, and specifically, how the shares in the financial management business and the medical practice will be divided.

In Massachusetts, assets are divided on an equitable basis.[1] A judge’s decision as to what is equitable will not be reversed unless “plainly wrong and excessive.”[2] A court may assign all or any part of the estate of the other, including, but not limited to, retirement benefits, military retirement benefits, pension, profit-sharing, annuity, deferred compensation, and insurance.[3] The definition of estate is broadly defined, however.[4] In fact, Massachusetts courts allow the division of premarital property and post-marital property on a case-by-case basis.[5] With regard to the division of shares in a partnership, courts will generally interpret G.L. c. 208 § 34 to include partnership assets within the scope of the possible assets that may be divided in a divorce.

Shares of a partnership and business practice interests are part of the marital estate and may be valued by a valuation expert to assess the market value of the asset. A professional practice, like a medical practice, is considered in Massachusetts to be subject to division during the divorce process.[6] Massachusetts courts may order one of the parties in a divorce to relinquish their share of ownership in the business and receive payment either as a lump sum or in a series of installment payments. A court may order that the business be sold and the spouse receives the profits. One spouse could buy-out the business from the other spouse or offset the business with other assets.

During the valuation process, there are generally three valuation methods: the market approach (estimates business value by comparing the business to a similar business that is recently sold); the income approach (estimates business value by converting economic benefits into a value); and the asset approach (estimates business value based on the assets and liabilities of the business).

In the above example, Taylor and Alex have several possible options afforded to them. A Massachusetts Probate and Family Court will divide the estate equitability based upon the parties’ needs and what is most equitable based on their individual case.

Want to speak with a divorce lawyer about your case? Schedule a free consultation with our office and you’ll learn how the law applies to your facts and circumstances. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.

[1] Adams v. Adams, 459 Mass. 361, 371 (2011) (citing to Bowring v. Reid, 399 Mass. 265, 267 (1987))

[2] Adams, 459 Mass. at 371 (citing to Redding v. Redding, 398 Mass. 102, 108 (1986))

[3] M.G.L. c. 208 § 34

[4] Rice v. Rice, 372 Mass. 398, 400 (1977) (holding that an estate is all property to which the party holds title, however acquired.)

[5] Moriarty v. Stone, 41 Mass. App. Ct. 151, 156 (1996) ; Brower v. Brower, 61 Mass. App. Ct. 216, 218 (2004)

[6] Goldman v. Goldman, 28 Mass. App. Ct. 603, 613 (1990).