Financial Errors During a Divorce Proceeding

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.

Marital Contract and Comity: New Massachusetts Case Law

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 marriage 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.

LGBTQ Issues in Family Law

Massachusetts generally recognizes marriages and divorces between LGBTQ-identified persons, but the issues that may occur for LGBTQ-identified people are as unique and nuanced as people themselves.

Note that there is not a separate or different process for separation and divorce for same-sex couples. In the case of all marriages, whether same-sex or heterosexual, the process for separation and divorce is the same in Massachusetts. The assignment of marital property and alimony matters are decided using the same standard whether it’s a hetero or same-sex marriage, through a process called equitable distribution. Matters regarding the custody and support of children are decided using the same standard in a same-sex marriage as well, by weighing what is in the best interests of the child.

Still, specific family law issues may arise for LGBTQ-identified persons. A skilled Massachusetts family law lawyer can help you to navigate the complexity of these issues. As some examples, take the following fact patterns:

  1. Henry and Sue are a cisgender and straight couple. This means that Henry and Sue identify with their born and identified sex. After a four-year marriage, Sue decides that she wants to date a woman. Henry wants a divorce. Are there any different considerations that Henry needs to know?
  2. Josh and Ben met in college. After dating for two years, they decided to live together. At the time, they could not get married in Massachusetts but lived together in Massachusetts, had a ceremony with their families to proclaim their commitment to each other, and held themselves out in public as a partnered and committed couple. Eventually, the Commonwealth of Massachusetts recognized equal marriage. Josh and Ben know want to know: are they legally married? If so, when are they considered to have been married? Is their marriage date the date that they had a commitment ceremony? Do they need to have a formal marriage or wedding ceremony? Suppose that they divorce one day in the future—what is the date that a court would use for purposes of alimony?3. Sandra and Daryl have young twins, Sarah and Frank. One day, Sandra, a stay-at-home mom, sees her son Frank in one of Sarah’s outfits. Shocked, but still in support of her child, she begins to take Frank to receive mental help support. Eventually Frank is diagnosed with Gender Dysphoria under the DSM-V. Sandra decides that she wants to support Frank now as Frankie. Sandra wants her child to publically identify as they wish. Eventually, Daryl learns of this and is outraged. Daryl wants to force Sandra to stop “encouraging” their child to be who they are. Does either party have any legal recourse or ways to protect their transgender kid?4. Betty and Joanie identify as a lesbian married couple, married and living in Massachusetts. After 6 years of marriage, Betty travels to California for business. After drinking too much and contrary to her better and usual judgment, Betty has an affair with a bisexual man. Unbeknownst to Betty, she becomes pregnant. She tells Joanie about the incident and, upon learning that she is pregnant, decides to keep the child. The couple decides to keep and raise the child together. They track down the man from California to tell him that they are pregnant and to offer to him the chance to meet the child one day. He is upset and wants full custody. Who has the legal right to custody of the child?5. Jackie and Margaret were married in Massachusetts, but now want to divorce. After they divorce, Jackie decides to return to the in vitro clinic to try to become pregnant with the embryo that both parties created together during the course of the marriage. May Jackie use the embryos? May Jackie use them regardless of whether they contain Jackie’s or Margaret’s specimens?

    While there will likely not be a big different for Henry’s divorce above, there are significant considerations that the other couples must consider. For example, Josh and Ben may not be considered to be legally married, especially if they were not really holding themselves out as married. Daryl may make his arguments against supporting his transgender child, but a Massachusetts judge would look to the best interests for Frankie and likely side with Sandra and Frankie. Betty and Joanie would likely be the legal parents of the child because a child born within a marriage is presumed to be the child of the two people in the marriage. The man with whom Betty had the affair may have a paternity burden to overcome, and would need to show that it is in the best interest of the child for him to have custody. Jackie and Margaret’s arrangement for the embryos would likely take precedent, but a mediator might be able to help the former couple to navigate this issue.

    If you have an issue related to LGBTQ issues, or general family law, you should contact a competent domestic relations lawyer or family law attorney who appreciates the diversity and value of all families. Our experienced professionals may be able to work on behalf of you or your family. Please contact our offices at your earliest convenience by phone at 978-225-9030 or complete a contact form on our website. We will return your inquiry with prompt attention.

Video or Phone Testimony in Divorce Cases: New Case Law

Should a party in a family law proceeding, who is unable to testify at trial or a hearing in person, be allowed to testify through the use of video or telephone? This was the issue in a recent case addressed by the Massachusetts Appeals Court.

In Bonaparte v. Devoti, the parties were married in 2005 in Italy. The husband lived in New Jersey, while the wife was an Italian national. In 2006, the wife gave birth to the couple’s son in Italy; she continued to live there, while the husband continued to live in New Jersey but visited his wife and son often. By 2009, the parties moved to Cape Cod, where they lives together in their marital home until 2011, when the wife and child returned to Italy. The wife was responsible for her own expenses and received little help from the husband until 2015, when he began sending her $100-150 per week.

In 2015, the husband filed for divorce. Nine days before the trial, the wife filed a motion seeking permission to testify via telephone or video. She explained that she was unable to enter the United States due to an irregularity with her permanent resident status. She also asserted that the child’s passport was expired and could not be renewed until the husband signed “the appropriate papers with the Italian Consulate.”

The trial judge denied the wife’s requests, stating that she had not properly sought a continuance. The judge entered a divorce judgment which closely resembled the proposed judgment submitted by the husband. The judge declined the wife’s request to deviate upward from the child support guidelines, and instead deviated downward—the judge noted the husband’s travel expenses as the reason.

The wife appealed, claiming that her due process rights were violated, and that denying her the opportunity to testify electronically was an abuse of discretion. The Appeals Court agreed. “It is apparent the judge viewed the wife’s motion to testify by electronic means as untimely, despite that there is no specific time frame for filing such a motion, under rule 30A(k) or otherwise,” the Court explained. “In focusing on audiovisual depositions pursuant to rule 30A, the judge appeared to overlook other available options to facilitate the wife’s participation in the trial, including live testimony via telephone or video, as requested by the wife.”

In doing so, the Court said, the trial judge failed to consider other relevant factors, such as the potential prejudice to the wife, and most importantly, the potential impact on the child’s best interests. “The judge’s findings contain minimal discussion of the child’s needs, despite those needs being a mandatory factor for the judge to consider under G. L. c. 208, § 34. The wife sought to introduce, through testimony, evidence regarding the child’s needs, including the various expenses she regularly incurs in connection with the child’s developmental and learning disabilities.”

Because the wife was not afforded the opportunity to present information regarding the mandatory factors, the Appeals Court held that the matter must be remanded to the trial court. “Here, the risk that the child may be receiving less support than necessary due to the wife’s inability to testify is too great to ignore. In light of the judge’s failure to consider the interests of the wife and the child, we conclude the denial of the wife’s request to testify by electronic means was an abuse of discretion.”

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.

Post-Divorce Agreement Without Court Approval: Is It Valid?

It is no secret that, in order for a divorce to be legally binding, court approval and judgment must be rendered. What happens, however, where the former spouses reach a post-divorce agreement between themselves without court approval? Do those types of agreements have any legal effect?

This question was addressed in a recent case by the Massachusetts appeals court. In Smith v. Smith, the court addressed the case of spouses who originally entered into a divorce agreement that set alimony at $650 per week. The agreement also provided that all matters regarding alimony merged into the divorce judgment. Subsequently, the husband reduced the amount of alimony he paid nine separate times, ultimately reducing it to $800 per month. At trial, the judge found that the husband and wife agreed to those reduced rates without filing any complaint for modification. In total, over a four-year period, the husband paid $87,400 less in alimony than what the divorce agreement called for.

The wife filed a complaint for contempt. She also sought the $87,400 in arrearage that she claimed the husband owed to her. The husband, in return, claimed that the wife had agreed to the alimony reductions, and that he made various other payments to cover costs for their emancipated children in exchange. The husband claimed that he otherwise would not have made those payments to the children. At trial, the husband was found not to be in contempt. The trial judge also ordered the parties’ alimony payments to be retroactively modified. The wife appealed.

On appeal, the Court noted that “not every violation of a clear order will constitute contempt, and thus that the requirement to prove “clear disobedience” has teeth.” The Court stated that contempt cases must be judged under the totality of circumstances. In this case, not only did the wife agree to the modified amounts, but “in reliance thereon, the husband had made the payments agreed upon and also had changed his behavior, to his detriment, by assuming “additional financial responsibilities” with respect to the parties’ emancipated children. It was within the judge’s discretion to conclude there was no “clear and undoubted disobedience” on these facts.”

Next, the Appeals Court took up the issue of whether the retroactive modifications should have been ordered by the trial judge. The Court pointed out that it is possible for a party not to be in contempt, yet still owe alimony. “The judge’s analysis and findings in this case were not sufficient to justify the retroactive modification of alimony,” the Court held, because the trial judge failed to address the factors mandated by G. L. c. 208, § 34, such as those dealing with the age of the parties, the length of the marriage, and the parties’ respective income and estates.

In order for an alimony judgment to be modified, those factors must be considered by the judge, the Appeals Court stated—and because they were not so considered here, the retroactive modification should not have taken place. “On remand, the judge should consider and evaluate the factors enumerated in § 34, including whether there has been a “material change in circumstances” with respect to those factors since the divorce judgment entered,” the Court explained. “In this connection the appropriate circumstances for consideration may include postdivorce conduct of the parties such as are present here, where a former spouse made certain statements and the other spouse detrimentally changed position in reliance thereon. Those facts, however, should be considered in the broader context of all the relevant § 34 factors, and any other material postdivorce changes to same. In so ruling, we do not mean to suggest, or to foreclose, any particular outcome after further consideration.”

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.

 

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.